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Full text of "Riding time like a river : the Catholic moral tradition since Vatican II"

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.*• 



Cu: U.K. 
Scotl. S\0 




TREATISE 



ON THE 



ELECTION LAWS IN SCOTLAND: 



TO WHICH 18 .ADDED 



AN HISTORICAL INQUIRY CONCERNING THE 
MUNICIPAL CONSTITUTION OF TOWNS 



AND BOROUGHS. 



WITH A» APPENDIX, CONTAINING THE ELECTION 
STATUTES, AND VARIOUS ILLUSTRATIVE DOCUMENTS. 



By ARTHUR GONNELL, Esq. 

ADVOCATE. 



WILLIAM BLACKWOOD, EDINBURGH : AND 
T. CADELL, STRANO, LONDON. 
MDCCCXXVIL 



-1 SEP 1975) 



cue 



P> Nnu, Pitattr. 



TO THB BIOHT HONOURASLE 

CHARLES HOPE, 

^LOBO PBE8IDSNT OF THE C(»XEGS OF JUSTICE. 



MYLOBB, 

Wbatbyse fears I may entertain, 
that the atjle and conduct of this work may not be worthy 
of your Lordship^s name, which I have been so kindly per- 
mitted to use, I can have no anxiety that the lustre of that 
name wiU be impaired by an association with the subject itself. 
The importance of our Election Law, as bemg connected with 
the preservation cf our dvil rights, and its difSculty, as in- 
volving many of the. most intricate principles of our feudal 
polity, are sufficient to secure for it no ordinary degree of at- 
tention ; and when we remember the remote periods to which 
many of its doctrines may be traced, apd its connection with 
the history of the Scottish Parliament, it becomes associated 
in our minds with the high antiquity of this nation as a]a 
independent kmgdom. 

I have the honour to be, with much respect, 

MY LORD, 

Your LoBDSBiP^s 

Most obedient and faithful servant, 

ARTHUR CONNELL. 

Aptao. 18S7. J 



k • 



PREFACE. 



The progresdve nature which the sdaioe of Law 
fOBsesaes in common with the other branches of li- 
benZ knowledge, might perhaps alone constitute a 
efficient i^ogy for another attanpt to illustrate a 
brmdi <^ our jurisprudence, which has been treated of 
by preceding writers. But it is upon the difference 
of the Aulbof s plan fix>m that of the works which have 
becsi already published on the Election Law of Scot- 
land, that he wishes to rest his defence in his present 
undertaking. His general object has been to give a 
mcie condensed view of the Election Law than is to 
be found in the treatises already before the public 
He has usually avoided entering into any lengthened 
detail of the circumstances of cases, whidi are to be 
found reported at length in the original repodtories 
of the collected decisions, or in the w<nks of those 
authors who first made them public; and he has^ 
in general, confined himself to such a concise state- 
ment of the different cases as has appeared to be suflGi<- 
dent to communicate the legal points which were de* 
oded. The fiMiUties for immediate reference which 
waA a plan must posses^ need not be pointed out 



« 



VI PREFACE. 

Where, however, he has given cases which have not 
before been reported, he has of course entered more 
fiilly into their circumstances^ and. has usually added 
in notes, reports of them more or less extended. 

The Author has fortunately been enabled to pulv 
lish Notes of the Opinions of the Judges in a variety 
of important election questions* The sources firom 
whidi hc^ has prindpally derived these notes have been 
twoMd* ' In the first place, he has had unlimited ac- 
cess to the valuable collection of Session Pampers ^f the 
late Lord President Campbell; and from these he 
has been etiabled to give both the Noteig of that enu» 
nent' lawyer of his own opinions, in a variety of cases 
decided during his presidency, and also those which 
he took on the Bench of what fell from the' otiier 
Judgesi With respect to these Notes, it is proper to 
observe that lliey ought to be taken in conneofeioii with 
the ftdl fepcftU of the cases to which they rdate, which 
are given in the direction of Dedrions published by 
^ Faeulty of Advocates ; because it has not been^ 
consistent with the Audior's plan to give so amjde a 
report of those cases as might be necessary- to the frdl 
understanding of these notes. At the same time, it 
is believed, tlmt, in general, even the short account 
which th^ Author has given of the dift^rrat cases, will 
be suffiiMit to enable tiie read^ to comprehend the ge^ 
nsval import of these opinions. The other souvee 



PBSFACE. vii 



horn wlucb he has derived the Opinions of the Gouit, 
is the CoUecticm of Notes of the kte Lord Hailes. 
Fsom this oolleetion, it is well known that the opi- 
nionSf fai a variety of cases* havebera ahready publish* 
ed, under the direction of a gentleman cf the Bar of 
well known industry and ability. The opinions, how*- 
ever» in a considerable number of cases, were not in<- 
duded in this publication, pnndpally because the 
eases were unreported, and the Session Papers could 
not be fimnd ; and many of these cases were dection 
questions. These dremnstances were kindly oommn^ 
nicated to the Author, and as he was enabled to dia- 
cover the Sesdon Papers for some of those eases in the 
odDeeticm c£ Sir iLii y Campbell, he was with great 
liberality permitted to avail himself of the Notes of 
Lord Hailes ; and has aoeordingly from that source 
printed the previondy unpublished opinions of the 
Court, in several questions. 

l^e Historied Inquiry regarding the Constitution 
of Towns, whidi has beoi appended to diel^gd part of 
this publication, was ori^ally intended to have re- 
lated merely to the Boroughs of Scotiand, and to have 
been of sudi an extent as might, without inconvenience, 
have been prefixed to that portion of the work whidi 
treats of the law of Borough Blections. But, in prosecut- 
ing this subject, the Author was strudc with the dmihi- 
rity of the borough constitutions ci different countries. 



Viii PEEFACS. 

and was induced to extend his inquiry, so as to indude 
a few of the principal countries of modem Europe, and 
also to enter rather more fully into the history of the 
Scottifih Borough constitutions than he had originally 
intended. The result has been, that, although the 
historical view which he has drawn up, can only be 
considered as a general outline of the subject, it be- 
came too extended to be inserted as an introduction to 
that part of the work rdating to the Law of Borou^ 
Blections ; and it was judged better to annex it as a 
separate Essay, appended to the whole subject In the 
portion of this inquiry relating to the Scottish Borou^, 
the Author has necessarily trenched on some of those 
historical points which were the subjects of keen po- 
litical controversy, during the pendence of certain 
questions in Parliament and before the Privy GouneU. 
His object, however, has been to abstain from all ex- 
pression of party sentiment, and to state the facts in 
regard to the history of our Borough Constitutions, 
precisely as they have appeared to him to be establish- 
ed by authentic historical evidence. 

In concluding these observations, he b^ leave to 
return his warmest adknowledgments to those of Im 
brethren at the Bar, who have kindly assisted him 
with opinions on points of difficulty as they hs^ppmei 
to occur, and who have permitted him the use <^ writ- 
ings and documents of various descriptions. 



CONTENTS. 



Intbodugtion, . . . 1 i. Pege 1 

PART I. 

OP THE fiLBCTION OF THB RBPSBSBNTATIT B PBBR8 

OF SCOTLAND. 

CHAPTER I. 
Of the qiudifiGatknift necessary to vote in the election of the 
sixteen Peers of Scotland, or to be eleded, • 7 

CHAPTER U. 
Of the proceedings at the meeting for election of peers, 17 

PART II. 

OF THB BLBCTION OF THB RBPBBSBNTATIYBS OF 

SHIRES. 

CHAPTER I. 
P«iew4ingi at the Michaelmas meeting, - • 21 

CHAPTER U. 

Of the fieehoUer^s quaMcatiott in respect of estate, - 49 

SioT. 1. Of the holding of the freeholder's estate and 

the constitntion of qualifications, - ib. 

3. Of the inleftoient of the dainiant, - 66 

3. Of the claimant's valuation, ..91 

1. Of old extent, . • - ib. 

2. Of vttlued rent, - - - 116 

4. Of votes on apparency, and in right of a wife, 147 

5. Of votes on adjudication and wadset, - 158 

6. Of the oath of trust and possession, and the 

objection of nominality, • « 168 

7- Of alteration of circumstances, - 216 

8. Of the jurisdiction of the Court of Session in 

regard to freehold qualifications, » 226 



X CONTENTS. 

CHAPTER III. 
Of certain personal dufaalifioations for being enrolled or vot- 
ing, --•--. Page 256 

CHAPTER IV. 
Of those persona entitled to be chosen representatives in Par- 
liament of a shire in Scotland, ... 267 

CHAPTER V. 

Of the appointment of, and mode of procedure at, the meet- 
ing £»r electing the representative for a county, • 274 

CHAPTER VI. 
Of returns by clerks and sheriffs, ... 282 

CHAPTER VII. 
Of bribery, 286 

PART III. 

OF TH£ ELECTION OF THE REPRESENTATIVES OF 
THE ROYAL BOROUGHS OF SCOTLAND. 

CHAPTER L 
Of the election of the magistrates and council of the royal 
boroughs, --.--« 295 

CHAPTER 11. * 
Of review, by the Court of Session, of eleotiotts of magistrates 
and council, ... . . . 350 

CHAPTER IIL 
Of the manner of electing the representatives of the royal 
boroughs, ..... sgQ 

Sect. 1. Of the manner of electmg a representative for 

die city of Edinburgh, - . ib. 

2.' Of the manner of electing the representative 

for a district of boroughs, - - 383 

1. Of the election of the delegate or com- 

missioner, - - - ib. 

2. Of the election of the representative 

by the delegates, - - 386 



CONTENTS. XI 

CHAPTER IV. 
Of the qualifications neoesaary in the representatives of bo- 
roughs^ - - - - . Page 400 



AN HISTORICAL INQUIBY CONCEENING THE 
MUNICIPAL CONSTITUTION OF TOWNS AND 
BOROUGHS, 403 

CHAPTER I. 

Rise and progress of the government of towns in Italy and 
France, ...... 404 

CHAPTER II. 
Rise and progress of the government of towns in England^ 427 

CHAPTER IIL 
Historical view of the ancient condition^ and of the mnnici- 
pal oonstitntion, of the boroughs of Scotland^ • 450 



APPENDIX. 

I. The Statutes at large, relating to the election of the 

peers and commoners for Scotland, • 539 

II. Proclamation for electing and summoning the six- 
teen peers of Scotland, ... 606 

III. Proclamation on the death of one of the sixteen 

peers for electing another, - - 607 

IV. Form of a proxy by a peer, - - . 608 
V. Form of a signed list by a peer, - • ib. 

VI. Certificate by a sheriff of a peer's having qualified 

himself to grant a proxy, or send a signed list, 609 
VII. List of the peerage of the north part of Britain cal- 
led Scotland, entered on the roll of peers, as it 
stood the 1st of May 1707 years, - - ib. 

VIII. Certificate or return by the clerk register, or clerks 

of Session, of the sixteen peers chosen, - 611 

IX. Form of the writ to the sheriffs upon the calling 

of a parliament, - - - - 6l2 



XU CONTENTS. 

X. Form of sheriflTs precept intimating day of election^ 613 
XI. Form of execation of the above intimation^ by the 

sheriff officer, and by the precentor, - 614 

XII. Formof the sheriff's annexing to the writ the return 

made by the derk to the freeholders, - 615 

XIII. Listof the boroughs of Scotland divided into districts, 616 

XIV. Precept from a sheriff to a borough, - - ib. 
XV. CommissioD from a borough to a del^ate, • 617 

XVI. Indenture between the sheriff and the derk of the 

presiding borough, ... 618 

XVII. Opinions ^ the Judges, firom the session-'papers of 

Sir Bay Campbell, in the case Mackenzie v. 

Madeod, 9th February 1768, - - 619 

XVIII. Prodamation for dissolving a parliament of Great 

Britain, arid declaring the calling of another, 621 
XIX. Deed of sale of a tenement in South Borwidi to the 

bishop of Moray, .... 622 
XX. Deed of sale of a tenement in Glasgow to the Abbey 

of Paisley, . . - . ib. 

XXI. Charter of David II. in fiivour of Dunfermline, Kirk- 

aldy, Musselburgh, and Queensferry, as boroughs 

of the Abbey of Dunfermline, - - 624 

Z' XXII. Feu of borough of Dunfermline by the Abbey, 626 



EBBATA* 

Page 140, 15 lines from top, imeri vih^fem Session, 
....... 8SC, 2d line of note,/ar he rmd are here 

_ 339» 3 lines from bottom of text, /or are rmid have been 

480, 11 lines from top,>br in firm read in ftnn 

IS — .— /M-infee-firmrMdinfeeiAna 

406, 8 lines from bottom of notes, inaert et cseteria afler ^ Pieposltls 

..^ 407, 8 lines from top of notes,/or feodisamam rttd Ifeodifinnam 
— 400, — - .- — >br Lynlithee, fwod Linlitbgw, 



mTRODUCTlON. 



Bt the origitiai ocnstitutioii <^ the Scottish 
those who held their lamb immeduitdy of the king were 
bound to ghre •ttendance in that asoonbly as the feudal court 
of tfadr saperior. This duty applied equally to the great 
floUes of the land^ and to the smaller proprietors. The obli- 
gilion appears, howia««r, to have been so hx relaxed, thai, in- 
stead of ooBstantly attending in person, those who owed suit 
were often in the habit of seoding ptocnrators or substitutes 
to sup^ their {daces,— a practice whidi was diecked by the 
act 14ftS, c. BStj which ordained all the Idng^s freeholders to 
attend in person, unless the pvocurators could prove a lawful 
cause of their absence. 

It win be obsenred, however, that this system of sending 
aiibatitntes did not slRird an exam^ of repreaenioHony ae- 
ovdiiiig to our present ideaaof that term, because each procu- 
rator merefy appeared for tiie particukor individual who sent 
him, and not fer any greater nundber. The first approach to 
a aystem of proper reprtaeiUaikmy was in the case ci the 
boroughs of the kagdom ; some of irinch came to enjoy the 
rig^ or to sufSer tiie buiden, of sending individuals to the 
Parliament or Convention, as the representatives of the com- 
munities by whom they were dqputed. The precise period at 
wUdh this event first luppened, has been the subject of mudi 
ooBtruveny, and is not yet iktermined. To one author, it 
has appeared that the boroughs must have'*been originally 
one of the estates of Parliament, because they must have been 
bound, as the king^s immediate vassals, to give suit and pre- 
ftnee in the kingV court, for the subjects held by them of the 



2 INTRODUCTION. 

crown \ Another writer^, with the view of shewing that, at 
least as early as the year 1210, during the reign of William 
the Lion, they attended in Parliament, has referred to the 
following passage in Fordun^: — ^ Hoc anno (1210) rex 
^ Sootiae Willielmus magnum tenuit concilium apud Strivelyn, 

* ubi interfuit frater ejus comes David de Huntyndon, paulo 
^ post festum Sancti Michaelis, ubi petito ab optimatibus auxi- 

* lio pro pecimia regi Angliae solvenda promiserunt se daturos 

* decern mme marcas, prseter burgenses regni qui sex aillia 
<maicanim promiserunt, praeter ecclesias, super quas nihil 

* imponere praesumpserunt.^ A third author has conjec- 
tured, that the first time the boroughs were represented was 
in the year 1804*, when Edward I. ordered a general council 
of the Scottish nation to be held at Perth *. 

From an indenture, in the year 1S26, betwixt Robert Bruce 
and the nobles, freeholders, and boroughs of the kingdom, 
which document has been preserved ^, it is certain, that in 
that year representatives from the boroughs attended a Par- 
liament held at Cambuskeneth, which granted the king the 
tenth penny of all the revenues from land. It is, however, 
not improbable, diat, even at this period, the representatives 
of the boroughs may not have uniformly, and, on all occa- 
sions constituted a part of the Parliament^. 

After the adnussion of the burgesses to Parliament, that 
assembly consisted of the thr^ estates, — of the clergy, the 



' Lord KatneB, Essays on British Antiquities, p. 3K 

^ Lord Hailes, Annals, i. p. 165. 3d edit. 

» Lib. 8. c. 73. * Wight, p. 44. 

* See a copy of it in Wigiit's Appendix. No. 1. 

* See Wight, p. 30.^In the PirliAxnent held at E^butgh in th* fa^ 
1357, which agveed to the xansom of David Bnice^ r^ieaentatlvet ware 
present from the following boroughs :— Edinburgh, Perth, Aberdeen, 
Dundee, Inverkethyn, Carale, Cupar, St Andrews, Monros, StzyveUn, 
I^nlithgow, Haddington, Dumbretane, Rotherglan, Lanark, Dumfries, 
Peblis. The representatives are designated ^ Aldemumni, Mercatores, et 
' Buigenses* of the different towns. K^ymef a Federa, vol. tL p. 44^ 



Il^TEODUCTION. 8 

bflioiis, and the vepreseBtadves of the bur^is, who met toge- 
ther m one house. 

The first attempt whidtwas made to mtiodiioe a system of 
repreteuiaSon amongst the bonxm who owed suit in Parlia- 
ment, was m the year 1427) a few years after James L re- 
tnnied fitom his captivity in England, where he had proba- 
Uy imbibed the ]&ighsh ideas on the constitution of Parlia- 
ment By the act 1427, c. 101, it was provided, that the 
small htfoDs and free tenants diould not be under the neces- 
sity of oommg to Parliament, provided esdi sheriffilom should 
send chere two or more wise men, according to the aizeof the 
ooimty, chosen atlhe head court of the shire. But this jtro- 
viaon did not take eSect. The small barons neglected to 
dect representatives ; and, therefore, continued bound to give 
personal attendance. One or two acts were, however, subse- 
qaently passed, to remove or alleviate the weight of this duty, 
widi respect to the smaller freeholders^* 

At length, in the rdlgn of James VI., the measure which 
had been attempted in that of James I. was carried into effisct, 
by the estabBdmieat of a system of representation among the 
khug^s fredioldaB, bdow the d^ree of prelates and lords of 
Parliament. By the act 1587, c. 114, it was providfid, that 
in each shire^ oommisaoners, acoonling to the number meo- 
tionedintheact of James I., should be chosen at the MidweU 
mas head court 3rearly ; and that the qualifications of those 
entitled to vote in their election, should be a forty shilling 
land held of the king, and actual residence within the shire. 

The qualification was farther extended by the act 1661, 
c. 85, which dedaied, ' That beside all heritors who hold a 
' fourty shillingB land of the king's majesty in capite^ that 

< also all heritors, liferenters, and wadsetters, holding of the 
* king, and others who held their lands formerly of the bishops 

< or abbots, and now bold of the king, and whose yearly 
^ rent doth amount to ten dialders of victual, or one thousand 

^ 1457, c. 75 ; 1503, c. 78. 



4 INTRODUCTION. 

* poundB (all feu-duties being deducted), shall be and are 

* capable to vote in the election of commissioners of Parliar- 

< ments, and to be dected commissioners to Parliaments, ex- 
^ oepting alwayes from this act all nobkmen and their vas- 
'aals; 

By the subsequent statute, IfiSl, c. 21, the qualification 
was put on the footing on which it still rests at the present 
day. By that act it was provided, * That none shall have 
^ vote in the election of conmiisdoners for shires or stew- 
^ aitries, whidi have been in use to be represented in Par- 
' liament and conventions, but those who at that time shall 
' be publickly infeft in property or superiority, and in pos- 

* sessiDn of a forty shilling land of old extent, holden of the 
^ king or prince, distinct from the feu-duties in feu-lands ; or, 
^ where the said old extent appears not, shall be infeft in 
^ lands lyable in public burden for his majesty^s supplies, for 

< four hundred pounds of valued rent, whether kirk4ands now 

* holden off the king, or other lands holding feu, waird, or 
> blench off his majesty, as king or prince of Scotland.'' 

By this act also, permission to vote was given to apprizers 
or adjudgers, after expiry of the legal, to proper wadsetters, 
to apparent heirs in possession, by their predecessors^ infbft* 
ment of the holding extent and valuation foresaid, to life, 
renters, and to husbands in right of their wives. The statute 
farther ordered the freeholders of each shire to make up a 
roll of the fiars, liferenters, and husbands having right to 
vote, and to revise it annually. 

The dignified clergy, who, even after the Reformation, had 
continued to sit in the Scottish Parliament for a conaderable 
period, were finally deprived of that right about the time of the 
Revolution, when Episcopacy was finally abolished^. 

By the Treaty of Union between England and Scotland it 
was provided, that the kingdom of Great Britain should be 
represented by one Parliament, to be called the Parliament of 

^ Wight, p. 75. 



INXnODUCTIOX. 5 

Great Britain. By the twenty-aeoond article of that treaty, 
it was provided, That of the Soots Peers at the time of the 
Umon, sixteen should be the number to nt and vote in the 
House of Lords ; and that forty-five representatives should 
be sent from Scotland to the House of Commons. It was 
subsequently declared, by the act 1707, c. 8, of the Scots 
Pariiament, which is held as equally valid as if it constituted 
a part of the Articles of Union, that the sixteen peers should 
be chosen by the peers of Scotland, out of their own number, 
by plurality of voices ; and that of the forty-five commoners, 
thirty should be sent by the shires, and fifteen by the royal 
boroughs ; of which boroughs Edinburgh should send <Mie 
member, and the remainder should be divided into fourteen 
districts, each of which districts should also send one mem- 
ber. It was also provided, that none should be capable to 
dect, or be elected, to represent a slure or borough in the 
Parliament of Great Britain, but such as might elect, or be 
elected, to represent a shire or borough in the Parliament of 
Scotland. 

It being thus established by the Treaty of Union, that re- 
presentatives should be sent to the British Parliament from 
the peerage, the counties, and the boroughs of Scotland, the 
subject of the following pages naturally divides itself into 
three parts : the first relating to the election of the represen- 
tatives fitim the Peers : the second to that of the representa- 
tives from the Shires ; and the tUrd to that of the represen- 
tatives from the Boroughs. 



PART I. 

OF THE ELECTION OF THE BEPSESENTATIVE PEERS 

OF SCOTLAND. 



In oQDsideiiiig the subject of the election of the representative 
peers of Scotland, there are two points which merit separate at- 
tention; 1^, The qualifications necessary to vote in this 
election, and to be elected ; and, 9tdfyy The mode of proceed- 
ing at the election* These subjects shall be considered in 
their order. 



CHAPTER I. 

OF THE <IUALIFICATI0NS HKCESSA&Y TO VOTE IN THIS ELEC- 
TION OF THK SIXTSEN IPEEES OF SCOTLAND, OE TO BE 
ELECTED. 

Immediately after the Treaty of Union, a roll of the whole 
peers of Scotland was returned to the House of Peers, by 
the Lord Clerk-fiegister, by ord|^r of that Housed This list 
has experienced some alterations and additions, but still forms 
the basis of the roll which is called at the election of peers 
at the priesent day'. 

Those who daim a right to vote, in virtue of a tide not 
on th^K>ll, may vote at the dection under protest; and it 
will ren with the House of Lords to determine the weight 
due to their votes when challenged ^ 



^ A copj of tins roll will be found in the Appendix, No* 7* 
• Wig^t, p. ISS, Note. ' IWd. 



8 OF THE ELECTION OF THE 



By tlie Soottiih act 1707, c 8, passed after the ooDdtiskm 
of the Trealy of UnioD, but before it took effect, it is deda. 
red, that the sixteen peers of Scotland shall be dected by the 
' peers of Scotland, whom they represent, their heirs and 

* successors, to their dignities and honours, out of their own 
^ number, and that by open election and plurality of voices 
^ of the peers present, and of the proxies.'' 

It was resdved by the House of Lords, in the month of 
January 1708, < That a peer of Scotland daiming to sit in 

* the House of Peers, by virtue of a patent passed mider 
' the Grait Sed of Great Britain, afiter the Union, and who 

* now sits in the Parliament of Ghneat Britain, had no right 

* to vote in the dection of the sixteen peers, whoare to re> 

* present the peers of Scotland in Parliament'.' 

English peers, however, having also Scottish peerage, were 
allowed to vote. 

The grounds on which the elective privilege was denied to 
Scottish peers created British peers, are stated by Bishop 
Burnet' to have been, that it would create an inequality 
among peers, if some had a vote by rq>rescntation, as wdl as 
in person ; that, by creating some of the diief fiunilies in 
Scotland Britidi peers, they would be able to carry the whde 
dectioa of thei sixteen as they pleased ; that the case of a 
Scottish and an English peer havii^ a British pesnge, was 
distinguished in this respect, that a Scottish and an Eng^ 
peerage are held under two diferent crowns, and by two dif- 
ferent great seals; but that Great Britain induding Scot> 
land as wdl as En^^and, the Scottish peerage sunk in that 
of Great Britam ; and that there having been only five peers 
of both kingdoms before the Union, it was of no gasat con- 
sequence giving them a double vote', iHnkt, in ikf caae 

^ SolMffison'0 Proceedings rekHve lo the SeoCch Peenge, p. 4S. 
* BOstocy of Us Times. Oxford ed. 18S3, vol. v. p. S8S. 
' li is listed In s note bj the Esii of DsYtaumfth, prialed in the abeve 
editioQf thtt the £nglith peers got this piiTilege throMgli the iuBticnce of 



PEERS OF SCOTLAND. 9 

of Soottifih Peen» the preeedeiit m^t be earned a great 
lengtli. 

A yen: or two afterwaNb, a decbioa of the House of 
Lofds, in rdatkm to the rig^t of Soottidi peers who had been 
created British Peers, to sit in Pariiament, was passed^ which 
in reality rendered this resolution, to a greet extent, nuga- 
tory, althott^ it would still appear to hare been generally 
acted upon. In the year 1711, in the cme of the Duke of 
Hamilton, who had been created Duke of Brandon after the 
Union, the question having been put in the House of Lords, 
wheCho* Soottidi peers created peers of Great Britain since 
the DinioD, have a ri^t to sit in that House, it was carried 
ia the n^ative, by 57 votes to 62. Hence, as the resolution 
of 1706 qypKed only to those Scottish peers created British 
peera^ and ' now sitting^ in Parliament, its eflSect was in rea* 
liiy destroyed by the decision in the year 1711> with respect 
to dioaeSoottish peers now disqualified firomaittkig. It would 
appear, however, that the Scottidi peers created British peers, 
nfiaiiied fion cUmk^ a vote in the election of Scottish peers, 
from the fiear that diey would be hdd as acquiescing in tb^ 
jnsdoe of fibe deduon of 1711. But, in the year 1784, at 
the general election of Scottish peers, the Dukes of Hamilton 
and Queensbeiy, who also had been created British peers, 
voted under protest that their doing so should not be hdd 
to infier any renunciation of theur ri^t to sit in the House of 
Lords, as ftritish peers^ After this period, however, the Scot- 
tidi peers created British peers, appear to have still refrained 
from voting at elections. In the year 178S, a new dedskm 
was pranonnoed as to the ri|^its of Scottish peers created Bri- 
tidi peers, to sit in the House of Lord& In that year, this 
point was, on the claim of the then Duke of Hamilton, refer- 
red by the House of Lords to the Judges ; and an unani- 

the IHike of Marlbcrougfa, who was Baron Aymouth in Scotland.— 
P.SS7. 
' Bobartion^a FrooeadiflgSy p> ]64..«f m^. 



10 OF THE ELECTION OF THE 

mous opinkm of those present was delivered^ thtt * the peers 

* of Scotland are not disabled from receiving, subsequ^itly 

< to the Umon, a patent of peerage of Great Britain, with all 

< the privileges usually incident th^etOi^ Upon this opinion 
the House came to the condusiony that the Duke of Hamil- 
ton and Brandon was entitled to be summoned to Parliament, 
and the question is now at rest. 

The effect of this decudon certainly was to revive the 
resolution 1708, because Scottish peers, who had been created 
British peers, were now entitled to sit in the House of 
Lords ; and this resolution was accordingly again recog- 
nised by the House of Lords, in the year 1787, when they 
ordered a copy of the resolution to be transmitted to the 
Lord Clerk-Re^ter, with an injunotion to him to conform 
to it*. 

In the year 1793, however, the House of Lords came to 
an opposite determination on the subject. At the general 
dection, in the year 1790, the Duke of Queensbery and the 
Earl of Abercom, who had been created British peers, gave 
in signed lists, for certain of the candidates for the represen- 
tadon of the Scottish pe0*age. These lists it would i^pear 
that the clerks of Session refused to reckon. When the pro- 
ceedings came under the review of the House of Lords, it 
was reported, on the S3d May 1798, as the opinion of the 
Committee of Privileges, that the Judges ought to be con- 
sulted on the point, whether a Scottish peer, sitting, or enti- 
ded to sit, in Parliament, as a British peer, is disabled from 
voting in elections of Scottish peers. It was carried in the 
House not to agree to this proposition of the Committee. It 
was afterwards, however, moved in the House, on the same 
day, * That the votes of the Duke of Queensbery and the 

< Earl of Abercom, if didy tendered at the last election 

* for electing sixteen peers of Scotland, ought to be counted," 
which motion was carried jn the affirmative. And, on the 8th 

^ Robertson's Proceedings, p. 441* 



PEERS OF SCOTLAND. 11 

June 1798, a reaolutioii of the Committee of Privileges having 
been reported, that the Duke of Queensberjr and the Earl 
of Abereom had sufficiently tendered th&x votes, by sending 
to the Cltf k-R^gister, or his deputies, signed lists, with pio- 
per documents that they had qualified according to law, it 
was resolved in the House to agree to that resolution of the 
Comnnttee. From this decision the Duke of Leeds, and the 
Earls of Kmnoul and Lauderdale, dissented'. The votes of 
SooCtiah peen who have been created British peers, are now 
received at the election of the sixteen Peers of Scotland, with- 
out olgection. 

No peer can vote, or be elected, who is under twenty-one 
years of 1^'. 

The act 1707, c. 8, excludes all papists, or suoh as reiuse 
when required to swear and subscribe the formula in the 8d 
act of the 8th and 9th session of King Williams's parliament^ 

' Journals of the Houfie of Lords, vol xxxix. p^ 693 and 726-7-8. 

« 1707, c a 

' The formula is of the following tenor :— * I do sincerely, from my 
^ htait, profeaa and declare, before God, who aearcheth the heart, that I 
*• do deny, disown, and abhor, these tenets and doctrines of the FapalRo- 
^ mish Ghuxtfa, viz. the supremacy of the Pope and Bishop of Rome, over 

* mU. pastors of the Githolic Church ; his power and authority over kings, 
^pmncesy and statesy and the infallibility that he pretends to, either with* 

* out or with a general council ; his power of dispensing and pardoning { 

* the doctrine of transubstantiation, and the corporal presence, with the 
« cnmmunian without the cup in the Sacrament of the Lord's Supper ; the 
^ adoratioo and sacrifice professed and practised by the Popish Church in 

* the mass ; the invocation of angels and saints ; the worshipping of 
' images, crosses, and relics ; the doctrine of supererogation, indulgencies, 

* and poigatory ; and the service and worship in an unknown tongue : 
' Ah which tenets and doctrines of the said church I believe to be con* 
^ tmy to, and inconsistent with, the written word of God. And I do 
*" from my heart deny, disown, and disclaim, the said doctrines and tenets 
' of the Church of Rome, as in the presence of God, without any equivo- 
^catko or mentJil reservation, but according to the known and plain 

* Ofanipg of the words, as to me offered and proposed. So help me 
•Go4» 



OF THE ELECTION OF THE 



The act 0th Ann, c. 28, requires that peers shall take the 
oath of supremacy', and the declaration, or test'. 

The latter act also requires, that they shall take and sub- 
scribe the oaths of all^^ianoe' and abjuration^ 

^ * I , do swear, that.! do, from my heart, abhor, detest, and ab' 
jure, as im|nou8 and heretical, that damnable doctrine and position, 
that princes, excommunicated or deprived bj the Pope, or any authority 
of the see of Rome, may be deposed or murdered by their subjects, or 
my other whatsoerer ; and I do dedaze, that no foreign prince, per- 
son, prdate, state, or potentate, hath, or ought to have, any jurisdiction, 
power, superiority, pre«-eminence, or authority, ecclesiastical or spiri- 
tual, within this realm. So help me God.* 

* ^ I , do solemnly and sincerely, in the presence of God, profess, 
tcBtiiy, and declare, that I do believe, that, in the sacnunent of the 
]jord*B Supper, there is not any transubstantistion of the elements of 
bread and wine into the body and blood of Christ, at or after the conse- 
cration thereof by any person whatsoever ; and that the invocation or 
adoration of the Virgin Maiy, or any other saint, and the sacrifice of the 
mass, as they are now used in the Church of Rome, are superstitious 
and idolatrous : And I do solemnly, in the presence of God, profess, tes- 
tify, and declare, that I do make this declaration, and 6very part there- 
of in the plain and ordinary sense of the words read unto me, as they 
are commonly understood by English Protestants, without any evasion, 
equivocation, or mental reservation whatsoever, and without any dispen* 
sation already granted me fer this purpose by the Pope, or any other au- 
thority or person whatsoever, or without any h9^ of any such dispen- 
sation from any person or authority whatsoever, or without thinking 
that I am or can be acquitted before God or man, or absolved of this 
declaration, or any part thereof*; although the Pope, or any other per- 
son or persons, or power whatsoever, should dispense with, or annul the 
same, or declare that it was null and void from the b^;inning.' 
' * I , do sincerely promise and swear, that I will be fidthAil, and 
bear all true allegiance to his Miyesty, &c. So help me God.' 
* ^ I — — , do truly and sincerely acknowledge, profess, testify, and de- 
clare, in my •con sci ence, before God and the world, that our sovereign 
lord King George, &c, is lawful and rif^tflil king of this realm, and all 
other his Migesty's dominions and countries thereimto belonging : And 
I do solemnly and sincerely declare, that I do believe, in my conscience, 
that not any of the descendants of the person who pretended to be Prince 
of Wales, during the life of the late King James the Second, and since 
his death, pretended to be, and took upon liimself the stile and title of 



PEERS OF SCOTLAND. 



18 



By the act 19ih Gko. II. c 38, it is provided, that no 
Soottiflh peer shall be capable of young or of beiog ele^ed, 
who shall have been twice, fwesent, withina year of such elec- 
tion, at divine service in any episcopal meeting in Scotland, 
not hdd and allowed in pursuance of the act 10th Anne, c. 
6 ' ; or not registered as directed by the act (19th Geo. II.) ; 
or where the minister did not in express words pray for the 
King by name, and all the royal family ; and it is declared 
that this objection may be stated by any peer present at the 
election, and proved by one or more witnessess on oath, or 
by the oath of the peer objected to ; which oath the Lord 
Clerk-Begister, or Clerk of Session, may administer. 

King of Engknd, bj the name of James the Third, or of Scotland, by 
the name of James the Vlllth, or the stile and title of King of Great 
Britauiy hath any right or title whatsoever to the crown of this realm, 
or any other the dominions thereto belonging ; and I do renounce, re- 
fuse, and abjure any allegiance or obedience to any of them ; and I do 
swear, that I will bear fiuth and true allegiance to his majesty King 
Geoige, and him will defend, to the utmost of my power, against all 
tndtonnis oonsptiades and attempts whatsoever, which shall be made 
agnnat bis person, crown, or dignity ; and I will do my utmost endea- 
vour lo dijcloy and make known to his migesty, and his successors, all 
treasons and traitorous conspiracies, which I shall know to be against 
him, CT an J of them ; and I do feithftilly promise, to the utmost of my 
power, to support, maintain, and defend the succession of the crown 
against the descendants of the said James, and against all other persons 
wliatsoever ; which succession, by an act, entitled * An act for the further H- 
mUaHan of Ae erown, asnd better teouring the righit andhberties of the tubjeei,' 
is and stands limited to the Princess Sopliia, Electressand Duchess Dow- 
ager of Hanover, and the heirs of her body, being Protestants : And all 
these things I do plainly and rinoerely acknowledge and swear, according to 
these express words by me spoken, and according to the plain and com- 
mon sense and understanding of the same words, without any equivoca- 
tion, mental evasion, or secret reservation whatsoever ; and I do make 
this recognition, acknowledgment, abjuration, renunciation, and promise 
heartily, willingly, and truly, upon the true fidth of a Christian. So 
hdp me God.*-*As corrected by 6th Geo. III. c. 03. 

^ By this act, it is inter alia provided that the pastor must be ordained 
by a protestant bishop, and take certain oaths to government, and pray for 
the Queen ; and that the meeting shall be with open doers. 



14 OF THE ELECTION OF THE 

With iiespect to th« objection of insanity, althou'gh there 
is no statutory proriaion on the subject, there can be little 
doubt that, where a peer has been cognosced by the verdict 
of a juiy, and put under legal curatory, and where proper 
evidence is produced of that verdict at an election of peers, 
that the vote of the peer cannot be received in any shape \ 
much less can he be elected himself. Where no l^al steps 
have been taken to ascertain his state of mind, and the indi- 
vidual does not appear at the election in person, but tenders 
a vote by proxy, or by a signed Ust, it would appear not to 
be competent to reject such vote, either on mere allegation of 
derangement, or on any offer of proof, which there can be 
little doubt would be quite incompetent. The case of 
greatest difficulty and delicacy would occur, should the indi- 
vidual appear himself at the election and tender his vote ; in 
which case there is strong ground for holding, that, if the 
insanity is quite manifest to all present, the vote ought not 
to be received ' ; but as to all inferior degrees of derange- 
ment, and especially as to any disease of mind not appearing 
at the time, it would appear that the vote, if tendered, must 
be received. All such cases are of course open to be after- 
terwards fuUy canvassed in the House of Lords, 

Besides the rig^t of voting in person, peers have the power 
of appointing a proxy to vote for them, and of voting by 
signed lists. 

The privilege of appointing a proxy is bestowed by the 
act 1707, c. 8, under this provision, — ^the ' said proxies be- 
' ing peers, and producing a mandate in writing duly signed 
^ before witnesses, and both the constituent and proxy being 
' qualified according to law.^ Those acting as proxies for 
absent peeers must therefore be peers, and qualified in the 
same manner as is necessary to entitle themselves to vote. 
The mandate must be signed by the witnesses ; but it is not 
necessary that the witnesses or writer of the mandate should 

> Wight, p. 122. > Ibid. 



PEERS OF SCOTLAND. 15 

be designed in the writing ; neither does the mandate require 
to be sealed, or written on stamped parchment '. 

With reelect to the right of voting by signed lists, the 
same act 1707 declares, that absent peers, who are qualified, 
may send *- lists of the peers whom they judge fittest, validly 
* signed by the said absent peers.^ 

Witnesses also must subscribe the lists ; but it is not ne^ 
oesMry that the name of the writer should be mentioned in 
them'. 

Peers who are English as well as Scottish peers must sign 
thcjr proxies and lists by their Scottish titles ^. 

Peers who appoint proxies, or vote by signed lists, must, 
by act 6th Anne, c. 23, take and subscribe the same oaths 
and declaration which have been already stated, as pre- 
scribed by that act 6th Anne, c. 28, to be taken by those 
peers who are present at an election^. Those who live in 
Scotland may qualify themselves in this manner in any she- 
riff court in Scotland ^ ; and, in practice, the sheriff^epute, 
at his substitute, holds a court for that purpose at any place 
within his county ^ The original subscription by the peer 
must be returned to the meeting by the sheriff, who must 
also return a certificate under his hand and seal that the peer 
has duly qualified himself'. 

Peers residing in England may take and subscribe the 
oaths and declaration in the Courts of Chancery, King'^s 
Bench, Common Pleas, or Exchequer; and a writ under 

' Resolutions of the House of Lords 1708; Robertson^s Proceedings, 
p. 43; See also p. 40. 

* Ibid. ' 6th Anne, c. 23. 

* This act of 6th Anne does not mention the formula of 3d act of 8th 
■nd 9tli wemaon of William amongst those to be taken by absent peers ; 
sod declares that peers taking the oaths contained in itself shall be qua- 
liBed to vote hy proxy or signed list. 

* eth Anne, c. 23. « Wight, p. 121 ; Bell, p. 16. 

^ (Mh Anne, c 23 ; Resolution of the House of I^rds, 26th January 

nos. 



16 OF THE ELECTION OF SCOTTISH PEERS. 

the seftl of court must be produced in evidence at the elec- 
tion'. 

Peers abroad on his Majeity^s service, who have formerly 
quali0ed as above in England or Scotland, may appoint a 
prox j^ or seifd a signed list, providing the evidence already 
mentioned of their having so qualified is produced '. Such 
peers are also admitted to those privileges, if they have taken 
the oaths in Parliament, provided the fact is certified under 
the great seal of Great Britain '. 

No peer can hold more than two proxies at one time \ 

^ 6th Anne, c. 83. < Ibid. * Ibid. * Ibid. 



( 17 ) 



CHAPTER H. 

OF THE FBOCEXmUGS AT THE MEETING FOE EI.XCTI0M 

07 PEEES. 

The prodamatioD callmg the peers to assemble for elect- 
ing representatives, must be published at Edinbur^ aiid 
the other county towns of Scotland, at least twenty-five days 
before the meeting for dection^. 

The proceedings at the election take place in the following 
order. 

After prayers by one of his Majesty^s chaplains, the pro^ 
chanati<m and execution or attestation of the pubKoation at 
Edinburgh of that proclamation, are read by one of the prin- 
cipal cterks of Session, two of whom attend the meeting. No 
evidence is required of the execution at the other county 
towns. 

The great roU of the peerage is then called; and the names 
of those peers who are present, or who vote by proxy or 
s^ed lists, are marked in the minutes^ Protests as to pee- 
cedency must be made during this calling. 

The oaths are then administered to those present ; and the 
evidence that those who are absent and vote by proxy or list 
have duly qualified, is examined. 

The votes are then collected, iHj Of the present peers, 
who read and deliver in signed notes of the peer or peers for 
whom they vote ; Sd, Of those peers holding proxies^ who, 
in like manner, read and deliver in signed notes ct the peers 
for whom th^ vote in their capacities of proxies ; and, lastly, 
of those absent peers who vote by s^ed lists. 

Protests against particular votes, founded either on want 
of right to the title of honour, or on informalities in the 

> 6th Axine, c 23. 

B 



18 OF THE ELECTION OF THE 

proxies or lists, must be made during the coUectiiig of the 
votes. 

The titles of the peer or peefs dteeted are then inserted in 
tw6 separate returns on parchment, which are signed and 
sealed by the principal clerks of Session ; and one <if which is 
returned to the clerk of the crown at London, and the other 
deposited with the other documents of election in the Raster 
House. 

The pTOMedikigs are closed with prayer. 

It is declared by the 6th Anne, c. ii, to be illegal to the 
peers to take any other subject under theb consideration ei*- 
oept the election of representatives; and that any peer itho 
shall act contrary to this provision, shall incur the penalty of 
premunire expressed in the statute 16tb Ridb. 11^ 

The duties of the meeting of peers are in no retspett ju- 
dichd. Their business is merely to give thc^ir votes, and not 

19 detemiiney as is done in a court of freeholders, on the title 
on which a vote is claimed. All that a peer has it in his 
power to do in support of any objection as to title, or as to 
pMoaeB dr otfier documents produced, is to take a protest on 
the subject, and bring the objection under the review of the 
House of Loitk by petiticm. Where, however, the House 
of Lords has come to any actual resolution with respect 
eitfaeh? to a title of peeMge, or to any form to be observed in 
rd^tioQ to the documents produced, the deiks of Session are 
bound to give effect to such resdution, at least when a copy 
of tibe resdution has beesi transmitted to the Lord Clerk-Re- 
gtster. On the Slst April 17S8, it was moved in the House 
of Lords, ^ That it is the opinion of the house that the 
^ Lord C3erk.Register, and his deputies acting at the election 
^ of the Sootdi peers, ought to conform to the resolutions of 

* this House, of which lliey have had notice by order of the 

* Houae;\a(tfid this motion was resdvedin the affirmative K 

^ As to th6 penalty of premunire, see Blackstone, voL iv. p. 113, 9th 
• and Wight, p. 124. 



PEERS OF SCOTLAND. 19 

In caae of equality of votes, there ib no castiiig vote given 
to any particular person ; the return must bear the true state 
of the fact. 

By 8th Geo. II. c. 30, all soldiers quartered in any town 
or place where an election of peers or conunoners is to take 
place, must be removed two miles from it, one day at least 
before the election takes place, and shaU not return till the 
day after it. This rule does not apply to a castle cfr fortified 
place, where a garrison is usually kept. 

' Jonmals of House of Lords, vol. xxxtHL p. 160. 



aS 



18 OF THE ELECTION OF THE 

proxies or lists, must be made during the collecting of the 
votes. 

The titles of the peer or peers elected are then inserted in 
tw6 separate returns on parchment, which are signed and 
sealed by the principal clerks of Session ; and one <if which is 
returned to the clerk of the crown at London, and the other 
deposited with the other documents of election in the Register 
House. 
The proeeediligs are closed with prayer. 
It is declared by the 6th Anne, c. SS, tobe ilkgal for the 
peers to take any other subject under their ccmsideration ex^ 
qtpt the deodon of representatives; and that any peer Who 
shall act contrary to this provision, shall incur the penalty of 
pramunire expressed in the statute 16th Rich. 11^ 

The duties of the meeting of peers are in no regpeti, ju- 

dioial. Their business is merely to give their votes, and not 

toi determine^ as is done in a court of freeholders, on Hie title 

on which a vote is claimed. All that a pe«r has it in his 

power to do in support of any objection as to title, or as to 

pnmeB dr odier dkicuments produced, is to take a protest on 

die sdbgect, end bring the objection under the leview of the 

House of horth by petition. Where, however, the House 

of Lords has come to any actual resolution with respect 

eithtik* to a title of peetsage, or to any form to be observed in 

rdAtion to the documents produced, the clerks of Session are 

bound to give effect to such resolution, at least when a copy 

of the resolution has been transmitted to the Lord Clerk-Re- 

giMer. On the Slst April 1788, it was moved in the House 

of Lords, * That it is the opinion of the house that the 

^ Lord Clerk-Register, and his deputies acting at the electioi^ 

^ flf the Scotdi peers, ou^t to conform to the resolutions of 

* this House, of which they have had notice by order of the 

^ Houae C • m^ this motion was rescived in the affirmative K 

^ As ttt the t>eiuilty of premunire, see Blackstone, vol ir. p. 112, 9th 
edition ; and Wight, p. 124. 



PEERS or SCOTLAND. 19 

In case of equality of votes, there is no casting vote given 
to any particular person ; the return must bear the true state 
of the fact 

By 8th Geo. II. c. 80, all soldiers quartered in any town 
or place where an election of peers or oonunoners is to take 
place, must be removed two miles from it, one day at least 
before the election takes place, and shall not return till the 
day after it. This rule does not apply to a castle or fortified 
place, where a gairiaon is usually kept. 

I Joiinudii of House of Lords, vol. xxxtul p. 150. 



bS 



18 OF THE ELECTION OF THE 

prcncies or Ibts, must be made during the collecting of the 
votes. 

The titles of the peei* or peets idiMeA are then inserted in 
tw6 separate returns on parchment, which are signed and 
seakd by the principal clerks of Session ; and one of which is 
returned to the clerk of the crown at London, and the other 
deposited with the other documents of dection in the Register 
Bouae. 

The proceedings are dosed with ptayer. 

It is declared by the 6th Anne, c. ^ tobe iUq;al for the 
peers to take any other subject under their ocmsideratlon ex« 
qept the electicm of representatives; and that any peer who 
shall act contrary to this provision, shall incur the penalty of 
pramunire expressed in the statute 16th Rich. 11^ 

The duties of the meeting of peers are in no reqf)eet ju- 
dicbd. Their business is merely to give their votes, and nm 

19 determine, as is dime in a court of freeholders, on the title 
on which a vote is claimed. All that a peer has it in his 
power to do in support of any objection as to title, or aa to 
fBttaim dr other documents produced, is to take a protest on 
die sttbiect, and brinir the obiectioii under the review of the 
House of Lords by petition. Where, however, the House 
of Lords has oome to any actual iDesolutioD with respect 
eitheb to a title of peerage, or to any foru to be observed in 
rdktioD to the docusients produced, the deiks of Session are 
bound to give effect to such resdution, at least when a copy 
of tibe resdution has becsi transmitted to the Lord Clerk^Re- 
gpiter. On the Slst April 17S8, it was moved in the House 
of Lords^ ^ That it is the opinion* of the house that the 
^ Lord Cleric-Raster, and his deputies acting at the election 

* dl the Sootdi peers, ought to oonform to the resolutions of 
^ this House, of which they have had notice by order of the 

* Houae f . adid this motion wa« resolved in the affirmative K 

^ As ttt th^ (i^nalty of premunire, see Blackstone, vol i v. p. 112, 9th 
edition ; and Wight, p. 124. 



PEERS OF SCOTLAND. 19 

In case of equality of votes, there is no casting vote given 
to any particular person ; the return must bear the true state 
of the fact 

By 8th Greo. II. c. 30, all soldiers quartered in any town 
or place where an election of peers or commoners is to take 
place, must be removed two miles from it, one day at least 
before the election takes place, and shall not return till the 
day after it This rule does not apply to a castle or fortified 
place, where a garrison is usually kept. 

1 Joomalii of House of Lurdfl, vol xxxviii p. 150. 



bS 



( 21 ) 



PART II. 

OF TH£ ELECTION OF THE REPRESENTATIYES OF 

SHIRES. 

The several subjects occurring under this head shall be 
considered in different chapters. 



CHAPTEE I. 

FBOCXBDIlirGS AT THX MICHAELMAS MK£TIK6. 

Bt the Statute 1681, 6. ftl, the freeholders of each county 
were ordered to make up a roll* of the freeholders in May 
then next, tmd to meet at the Michaelmas head court yearly 
thereafter, £or the purpose .of revising the said roll. 

The statute has provided no remedy if the freeholders 
shall nqgJect to assemble, as here ordered ; and, in a case 
where a complaint, <m the ground that no meeting had taken 
place, was presented by a gentleman who had lodged a daim 
to be added to the roll of the county of Cromarty, and where 
it was strongly urged that no wrong should be without a re- 
medy, the Court dismissed the complaint as incompetent ^ 

By the statute 16th Greo. II. c. 11, which is now, to a 
great extent, the regulating act both as to Michaelmas and 
dfiction meetings, it is provided \ That, at each Michaelmas 
meeting, the original members shall be such persons only as 

* Mackenzie v. Freeholders of Cromarty, 20th December 1763 « Wi^t, 
p.U7. 

* Sect 11. 1 



22 MICHAELMAS MEETING. 

stand upon the roll which shall have been made up at the last 
Michaelmas or election meeting. 

A copy of this roll, together with the minutes of proceed- 
ings, is ordered to be deliVercti to thd sheriff or steward clerk, * 
to be inserted in books to be kept for that purpose ; which 
haeks ate brdoidd to be produced at every Michaelmas or 
election meeting, under a penalty of L. 100 Sterling^ This 
penalty is also incurred if he shaU neglect to make the entry 
in the bockiB, cr shaU refuse an extract to any freeholder 
who asks it. If the books are not produced, it is declared 
that a copy of the roll and minutes, extracted and signed by 
the sheriff or steward'^s clerk, shall be sufficient. If he shall 
give out a false extract, he ineu^g a penalty of L. 100 Ster- 
ling, and is incapable of ever after holding his office. 

There is lk> iqucMm of fin^oldiers fixed by few to consti- 
tute a regular meeting. One freeholder may hold either a 
MiehaeliiMM ixt deetidn tnef^ting^. * III a case where various 
eliimants were eniblled at a Miehadmas oouirt, held lay kme 
fteehddcor ohly, and con^filAints w«re l^odged against thdr 
enrohnent by iKHdth^r fil^elKt^de)*, a« well as eom|ilafait8 at 
the instancectf those enh>ll0d aganist the dieriff-dtfk, tor re- 
fusing, at a subsequent election tneetiDg, to call the roll made 
up by die single freeholder, the CoiR't of Session dismissed 
the first set of oomplaintB ; and, on advising the seeoi^, fcNind 
die statutory penalties incurred by the sheriff-clerk ^. 

For the purpose bf chobshlg a preses and derk of the wieet- 
ing, the roB is called by the coAiraissioner last elected re^m- 
seiiCallvi& of the eounty, and, in his absence, by the sheriff- 
datk\ 

In ease of an equidity of votes for preses and dark, llie 
essting vote belongs to the following persons in order ; f^, 

> asct. U. * Wifi^t, p. 106. 

' Mackmy and others v. Reddoch and others, 1762 ; Wi^t, p. 156. 
* If both are absent, Mr Wight thinks that the same order should be 
followed as is observed with respect to the casting vote. 



ELECTION OF «PEf:ft£6 AND CLERK. 

to dK ooiiiwwMer li0t elected ; a^oondly, in abMDce of Ihe 
praeednig, lo m^y iotmer rq^rewntative ; thixdly, to the firee- 
kolder praNBty ^o lest pffesided at mj meeting for electioD ; 
imuihkjf to ^e fredioUer who hut presided at eny Mkhad- 
mas QKetiog; Aiid» laatly, to the freehoUkr piesent who 
ilnds fint on the folL Hia caetiDg vote is in addition to the 
Qidiiiary ipote of these indinduala. 

The miinitea of the election of pceses and derk are signed 
by the penon who ealled the roU at their eledaon, and de- 
JiTcred lo the person who has been elected clerL 

The faeholdeta then proceed to take and subscnbe the 
oaAs of ^^^•■^ and abjuration, and to sign the aasiur- 



It is not dMolutdy necessary to take the oath d abjura- 
tion, unkfls it be ecxpiessly requiaed to be put by one cf the 
bseholdasB psesent '. 

If the espresrfons of the acts 6th Aime, c. 28 \ and 1st 
Gea III. & 18 ^, aie taken litefaUy, it may be supposed that 



^ Wight, p. 150. The fomi of the assurance is as follows : * I 



*^ do, in the ^nceiHy of my heart, assert, acknowledge, and declare, that 
^UaM^nAy King Oesife is the oidyJswIbi and undoubted sofvreign of 
* this leabi, as well df iHM, that Is, of ri|^t,klng,aa^/aoto, that is, in 
' the poswiian and exezdse of the government ; and, therefore, I do pro- 
< mise and swear, that I will, with heart and hand, lifo and goods, main- 
*' tain and defend his right, title, and government, against the descendants 

* of the penon who pretended to be Mnce of Wales during the life of l^e 
' late King James, sad since his decease piratended to be, and took upon 
' himself the stile and title of King of England, by the name of James the 
*" Third, or of Scotland, by the name of James the Eighth, or the stile and 
' title of King of Great Britain, and their adherents, and all other enemies, 

* whOf either by open or secret attempts, shall distuib or disquiet Ins Ma- 

* jesty in the possession and exerdae thereof* For the osihs of aUeglsnee 
and alauimticm, see p. 18. The oaths to Government may, by 7 th Q«o* 
II. c. 16. § 10, be administered before choosing preses and clerk, if re- 
qoixed by any freeholder present. 

9 * l^gfat, p. 160. See the acts 7th Geo. II. c 16 g 10; 6th Anne, c. 23, 
and let 6eo^ II. c. 13. 
' In fine. « Sect. 4. 



24 MICHAELMAS M££ttNO. 

Use aaly oonfiequence of a refiual to take the oalh of abjura- 
tion is to be disqualified from voting for the prases, or mem- 
ber, or in making up the rolls, and this, accordingly, is Mr 
Wigbt*s -(^Hnion^; but the act 1707, c. 8, is expressed in 
terms somewhat similar with respect to the formula as to po- 
pery ; and yet it was decided, that the consequence of a refu- 
sal to subscribe that formula was to be struck off the roll, 
even after the lapse of fom* mcmths ^ ; and it may also be ob- 
served, that, from the terms of the 10th section of the 7di 
Greo. II. c. 16^ the oath of abjuration may be put before en- 
rolment. It is therefore doubtful, whether the consequence 
of refudng that eath, even after having been on the roll four 
months, would not be to be struck off the roll 

The clause above alluded to, of the act 7th Geo. II. ui not 
held to include the trust-oath ^. By a subsequent act, 87tfe 
Greo. III. c 138, it was provided that this oath might be put 
befora choosing the preses and derk at election meetings; 
but as nothing is said of Midiaelmas meetings, it cannot be 
put at such meetings, before choosing the preses and derk. 

, The meetipg of freeholders having been thus constituted, 
and the members having thus duly qualified, the court pro- 
ceeds to its proper business, viz. the regulation of the roll of 
freeholders. This duty consists in striking off the names of 
those persons who have died since last meeting; in consider- 
iDig the objections made to those upon the roll, and in deter- 
mining on the merits of the claims for enrolment. In all such 
questions the president has the casting vote. 

Every onp who intends to object to any freeholder already 
on the roll, or to claim enrolment for himself, must lodge his 
objections, or a copy of his daim, at least two months before 
the meeting, with the sheriff-clerk, who must indorse on 

1 Wight, p. 269, Note. 

« Feigufloo «. Qlendonwyne, 17th Februarj 1803 ; Fac. \ 

» See infia, under the subject pf the Tnist-Oath, 



FORM OF THE CLAIM. 25 

theie clocumcnts the day he received theniy and give a oopj 
of them to any peraon who shall demand them ^ 

These ngulatioiiB, however, apfdy to Michadmas meet- 
ngs only. At election meetings freehcdders may be struck 
off, or eoroUedy without the previous lodging of objections or 

With respect to objections thus lodged, it is not essential 
that they diould be signed by any one, or diould bear in 
iriiose name they have been given in ' ; but some person must 
insist on their bdng taken under consideration '. 

It was held to have been a sufficient ccMupliance with the 
rule that a daim must be lodged two months before Ihe meet- 
ing; that the daim had been lodged at 4 p. m. of 6th Au- 
gust, fldthough the freeholda^ met before two o'clock of 6th 
October, because it is suffident that dther the day of pre^ 
sentment, or the day to which notice is given, be free ; and 
if either the 6th August or 6th October were computed, the 
two moDths were oomplete \ 

The rule as to the necessity of two months having expired, 
applieB equally to the case of an apparent hdr as to any 



The claim must set forth the name, old extent or valua- 
tioB^ aMid titles of the lands referred to, and the dates of the 
titles''. 

It ia not necessary that the daim should be signed by the 
party daiming ''y but it must bear in whose name it is present- 
ed, because the freeholders must know who it is that asks en- 
rdment ; and if any misnomer occurs in the daim, it will be 

> imb Geo. IL c. 11. sect 7- 

' Banlriiie and Inrine «. Buxuay and Colvil, 1767 ; Wight, p. 153. 

' Wight, p. 164. 

* £lliot vw Fexguson, 15th January 17fi2 ; FoL Diet liL 429 ; Fac. 
CoL 

^ '^f«^*lr^»naeitf> v. MuuTo, 85th JanuaTj 1783 ; Fac CoL 

* leUi Geob II. c U. sect. 7. 
' Wi^i, p. 164. 



26 MICHAELMAS MEETING. 

fatal to tile eiin>lmeDt Thus, wbare a tUm was poesanted 
in the name of Lieutenant Joim Camecon of the West Fen- 
eible Begimait, and it aftcrvardfi turned out that hia true 
ehriatian name was Duncan or Duncan John, his ^mww^my/m^ 
as Lieutenant John Camcnm was found to he null K 

The claimant does not require to appear in person mi the 
meeting ; .and any one producing his titles is presmnad to 
have authority to appear for him '. In one case wiiere a 
doim had been duly lodged, two freeholdem only attended the 
Michaelmas meeting, and when the daim was moved bydie ahe- 
riff-derk, who wasalso derk of the meeting, they evaded tsfking 
oognisance of it, and afterwards refused to oomply with the rie- 
quest of the brotha*-4n4aw of the daimant to take up the cUm, 
on the ground that the business was concluded when this re- 
quest was made, as the preses was then signing the minutes. 
These minutes also bore that intimation had been made at the 
door fcH- some one to appear for the claimaart, but Aat no 
appearance had been made. The Court of Session, in Itie 
whole circumstanoes, ordered the claimant to be enrolled '. 
When, however, a claimant is out of the kk^om, a manckHe 
must be produced to some person to appear for him, whelher 
at a Michaelmas * or dection ^ meeting 

It is suffident that the daim bears, that the valuation of 
the lands exceeds L. 400 Scots, although it does not specify 
the exact amount ^. But if a daim should bear, that the 
Ittids are of a particular extent, and ^ovolment diouid take 

^ Dalrjmple v, Cameron, 8th February 1781 ; Sup^ to Wi^t, p. 18. 

^ Wight, p. 164. 

3 Campbell o. Macneill and Macconochie, 24tb June 1773 ; Fac. 

* Dundas o. Ferguson, 20th July 1780 ; Fac. 

^ Davidson v. Elphhistone, Oth July 1802; Fac. The fbHowing note is 
from the Session Papers of Lord President CampbelL * In this Court the 

* appearance of an advocate presumes a mandate, if Ids dieat be within the 
« kingdoiB, but not, if without it. The whole of this business conducted 

* by a negoikrum gukor without authority. Petttloner oug^ to be struck 
^ off roll, and a new claim may be entered fat him if properly authorlped.* 

* Grant v. Leith, 18th January 1784 ; Fac 



FORM OF THE CLAIM. 27 



place JMsoordingly, it k not oompetent fiorthe daimant^ m the 
Court of SeMCHi, if he fidls in shewiag that the retours prove 
that extent, to sapport his titb bj maintainiiig that tliej es- 
tdbKdi die l^al unount, although a leas extent than that 
mentioned in his claim '. 

The statute does not require that the register in which the 
sanne has been recorded shall be mentioned in the claim ; and 
aoooidin^y the Court replied an objecticm to a claim that the 
register had not been stated*. In a fNrior case, however, 
where die daim bore that the sasine was recorded in one re- 
gister, when in feet it was recorded in another, diat circum. 
stance was held to constitute a fatal objection^. It will re- 
ooncfle these two decisions to hold, that, although it is not 
necessary to mention the register, 3ret if this is done it must 
be done aocuratdy. 

The statute requires, that (he daimant shall set forth ^ the 
* names of his lands and titles thereto, and dates thereof, with 
' the oU extent or valuation.* It does not, however, appear 
to be hdd necessary in all eases, that he shall specify the pM- 
dae character in whidi he claims, or die exact nature of the 
inteEiest he baa in the lands ; but still it seems proper that h^ 
should give such a dueripHon of Attf ^IBm^ as that the free- 
hoUeiv may be enabled to discover the nature of his right with 
reaaoniMe certainty. If his right is merely one of liferent, 
be cannot lodge a claim in which all his tides are so descri- 
bed as to lead to the conclusion that he has the full fee of the 
Bulyet. In a case where a daim bore that die daimant was 
* pubHdy itifeft in all and whole the half of* certain lands, 
^ conibrm to a diarter under the Great Seal in favour of 
^ FiBDcis LKird Ni^er, dated," &c.; * disposition of the said 
^ lands and assignation to the said charter, and precept of 

' Moa^Doaiie v. AiosUe, llrth June 1S13 ; Fac 
* Lindttj Carniigie o. Gardyne, 26th February 1796 ; Sup. to Wigbt, 
]K 1ft 
«Wi|^t,p. 162. 



88 MICHAELMAS MEETING. 

^ saaine therein contained, in flAvour of the said Lieut^iant- 
^ Colonel Alexander Murray,^ (the daimant), &c. ' instrument 
* of sasine taken on the said charter ^ and it turned out that 
his right vms one of liferent only, the freeholders were found 
to have done right in refusing enrolment '. In a later case, 
however, a daim by a wadsetter was sustained, although it 
did not set forth that he claimed in that character, but mere- 
ly described his titles as a charter of certain lands contain- 
ed in two contracts of wadset, and a sadne in those lands'. 
In another case also, older than either of the preceding, 
where a daim had been made as liferenter of certain lands, 
without stating that the rif^t was limited to the liferenter of 
the superiority ; and at the meeting a sasine in the property 
in favour of another had been produced, from which it ap- 
peared that the claimant was liferenter of the superiority on- 
ly, the Court repelled the objection to the claim stated on 
that ground '. 

If a claim is made by a liferenter, it is not necessary that he 

should state who the fiar is, the only concern of the firediold- 

ers being with the daimanf s proper title. This was hdd in a 

'case where the claimant set forth as one of his titles a dia- 

. position and assignation of a diarter to him in liferent, but 



< > 



1 Mumy V. Muir Mackenzie, 16th May 1790; Sup. to Wight, p. SO ; 
Fac. The following notes relating to this case, are from the Session Pa- 
pen of Lord President Campbell ^ Interlocutor right. Nature of the title 
*• ought to appear, otherwise the freeholders, instead of being informed, are 
' deoalTed. Pr^perfy or t up mo ni gf stands on difierent footing. Superior 
*■ is proprietor in the eye of the law ; but nature of the HUe ought to be set 
' forth. Whether courtesy, apparency, liferent, &c.-.-univer8al practice.— 
' Monboddo 9 for adhering ; has not given a sufficient state of his titles. 
' Dwimnon, for altering' Hailes, suppose the brother had lodged in same 
*• terms. JuaAoi^Clerky Law meant sometliing when it required titles to 
' be set forth ; has set forth a title which he has not. Swrnkn^ same ; his 
' estate is a liferent, but ckim does not say so. itoofevtife, same.*^Ad- 
'here.' 

^ Mackay «. Houston, 9th March 1796 ; Session Papers. 

3 Forbes of New, 22d February 1774 ; Bell, p. 36. 



FORM OF THE CLAIM. S9 

did not state that the disposition, as was the fact, was to 
himself in liferent, and to another in fee ^ 

It would appear, that it is not essential to condescend in 
the claim, upon the retour which is to be adduced in evidence 
of the old extent, if the qualification is rested on that kind of 
valuation *. A retour is not, in relation to this question, one 
of the titles of the lands^ as it is merely adduced in evidence of 
the extent Accordingly, in one instance a retour not men- 
ticMied in the daim, was admitted in support c^ another re- 
tour which had been mentioned^. 

The statute expressly requires that the dates of the titles 
«faall be set forth in the claim. In one instance, however, 
the Court repelled an objection, founded on the omission of 
the date of one diarter, and the erroneous statement of that of 
another \ In another instance, the objection was repelled, 
that the date of the claimants retour had not been given ^ ; 
but as it does not appear to be necessary to particularize the 
retour, this case is not a precedent as to the necessity of set- 
ting forth the dates of titles. In a later case, where the^ 
daim bore, that the saaine was dated 8d May 1810, and re- 
corded on ^3d June of die ' year foresaid,^ whereas the true 
date was 1809 ; and where it appeared, that if the date men- 
tkmed in the claim had been the true one, a year had not 
ei^wed fixim the infeftment, the error was found to be fatal 
to the claim ; and Lord President Blair, in delivering his 
opinion on this case, appears to have rested his opinion not 
merdy on the piindple, that, if the date is given, it must be 
given aocumtdy ; but upon the general ground that the set- 
ting fiirth tbe dates of the titles in the claim is a statutory 
requisite^. 

> Biiduman «• Fisher, 7tb July 1824 ; Fac. and Shaw. 
*8eeBell, fv a& 

' Scot and Tod v. Millar, 20ib February 1787 ; Sup. to Wight, p. 15, 
and Fac 

* Skene «. Oraham 1787 ; Wight, p. 151, Note. 

* OgflTj V. Coutta, 1768, Wight, ib. 

* Monro r. Monro, dth March 1811 ; Fac. 



so MICHAELMAS MEETING. 

It ia equally incumbent upon an heir^parent as upon any 
other claimant, to comply with the statutory requiflites re- 
garding a daim. In one caae a person ckumed as heir^ap- 
parent to his father, in virtue of his £either'8 ^ charter and in- 

* feftment in the lands of Mayen and others therein specified, 
^ lying within the parish of Botbonay, and county of Banff; 

* which diarter and infeftment ar^ herewith produced ;' 
and the objecticA was nistained, that the daim did not flpen- 
dfy the dates of the jnedeeessor's titles, the particular lands, 
or their extent or valuation ^. 

It appears also to be essential for a person asking to re> 
strict his qualification to a part of the lands on which he was 
originally enrdled, to lodge a previous daim ' ; and this is 
done m practice* 

In a case whidi recently occurred, a frediolder had been 
enroUed on certain lands, the liferent of which he after- 
wards diqiosed of to a third party, retaining the fee. He 
then presented to a meeting oi freehdders, a petition, praying 
that certain other lands should be a&ded to the lands on 
which he was already enroUed,-^that his quahfination shoisld 
then be restricted to those lands thus added,-**-and that he 
should be allowed to retain his place on the rolL It was otgeet- 
ed that this was not truly a ease of restriction ; but an eatire 
new qualification, wluch^ therefore, did not entitle the tnAqUL- 
er to retain his place on the rdl. It was aaswened, that any 
freeholder may add to his qualification and then restrict ]t,-p- 
that this operation cannot afliect his place on the niU,r«*and 
that, as this operation could undoublttdly ha^« been efieeted 
at two meetings, there was no reason why it should not be 
done at one. The Court afBrmed the judgment of the fiwe* 
holders, which had granted the prayer of the petition ^. 

The next point of inquiry regards the titles which must be 
produced in evidence of the qualification of a claimant, and 

^ Gordon v. Abernetby, 3d March 1773 ; Fac. 

"^ Stewarts v, CampbeU, 9th August 177^ ; Fac 

' Moriaon v, Karl of Fife, 28th February 1836 ( Fac. and Shaw. 



WHAT TITLES TO B£ PRODUCED. 31 

the objactkwis to those titles which it is competent for a cpurt 
of fluuiiuldiiu to make. 

Tlie general rule is^ that the only titles which fiediQlderB 
oe eoAtked to investigate, are the charter and aastne of the 
dsimaat ; and that if these are ^^r/Sui^ formal, he has a right 
to be emroUed ^ It must, however^ be oonaidered as oompre- 
heaAed in this rule, that the chunant must produee all titles 
whidi are requisite to connect his infeftment with the charter 
on which itproeeeds ; and that it is competent, within certain 
limits, to the freeholders to state objectioDS to the manner in 
wlucfa he ooimeets himself with his character. When a diar- 
ter tt not directly in favour of the claimant but el his witluvy 
snd the latter has granted in favour of the former a disposi* 
tioo to the lands, containing an assignation to the charter, 
upon the precept of* which the claimant is infeft ; or where 
die charter is in favour of one whom the dainumt rqwresents, 
and who was not infeft, and the claimant has acquired right 
to the {areoept in the charter by a general service, in such 
cases the disposition and assignation, or the r<etour of service, 
fanas part of the titles which the daimatit must produce to 
the freeholders. The rule as to the necessity of producing 
the disposition and assignaticni, was enforced in the case of a 
daim o/ eniolaieiit by a fiar, although it had formerly been 
potodttced wh^ the liferettter was enrolled, as appeared from the 
nniutes, since whidi time it had been lost or mislaid ^. In 
a previous instanoe, a relaxation of the general rule was ad- 
mitted to a certain eaUent, by a judgment of the House of 
liOtda, in m case where a retour of goaeral service, by which 
the ioHnediate author of the claimant took up the unexecuted 
ftteepi of aasine, had not been produced to the meeting of 
freeholders ; but the sberifiP-derk, who was also derk of the 
meetii^, acdmowledged to the meeting that it had been de- 
livered to him, and that he had it that morning, although he ' 

^ Wi^it, p. 218. 

' Kdmouritone, 29th Febnisry 17<0 ; Fol. Diet. iii. 434. 



32 MICHAELMAS MEETING. 

oould not then find it. The Court of Session^ even in these 
circumstances, enforced the general rule^ and found that the 
daimant was not entitled to be airolled^ ; but the House of 
Peers, on the ground that the retour was in the hands fi£ the 
derk on the morning of the meeting, and was then acciden- 
tally lost, so that an extract could not be got during the sitting 
of the meeting, but which extract was produced to the Court 
of Session, reversed the judgment^ In a subsequent case also, 
one of the titles was allowed, under particular circumst«ioes» lo 
be supplied iu the Court of Session. In this instance, no ob- 
jection, founded on the want of the dispoaidon carrying the 
charter, had been made at the meeting of frediolders ; and the 
claimant had consequently been deprived of the opportunity 
of remedying the defect, by actually producing the disposition 
which was then in his possession. In these dicumstances, 
the claimant was allowed to produce it in the Court of Ses- 
sion, in a complaint against his enrolment, which complaint 
was dismissed ^ ; and the judgment was approved of by the 
Committee of the House of Commons. 

It has been mentioned, that it is competent for the firtee- 
holders to consider objections stated to the manner in which 
the claimant connects himself with his crown^arter. In one 
case an objection of this nature was urged, which, in reaUty, 
resolved itself into an allegation that the claimant was not 
properly infeft, in so far as respected the titles on which he 
founded. The claimant asked enrolment, in right of his wife, 
and it ha^nng been objected, at the meeting of freeholders, to 
her infeftment, chat the precept of the diarter on whidi it 
proceeded was exhausted by a previous sasine which had been 
taken on it, the Court found that the daimant was not enti^ 
tied to be enrolled \ This power, however, of objecting t» 

^ Diiuglaa 0. Reid, 2d January 1768 ; Fac. « FoL Diet. Ui. 436.' 

^ Hamilton r. Cathcart, March 6. 1780 ; Fac. 

* Lindsay Caraegie o. Robertson Scott, 26th February 1796 ; Fsc: It 
appears from the Session Papers in this case, that an ttrlrocl of the prior 



COMFETENCV OF OBJECTIONS. 38 

the mode of oonnecting the charta* and infeftment, must he 
iffldentood within certain limits. With respect to the titka 
pRMlaoed, in evidence of the steps by whidi a claimants in- 
fcftment is connected with his charter, such as dispositioiia 
aid retours, it will in general be equally incompetent to state 
ny objections but those appearing exjacky as with respect 
to the charter and sasine themselves. Freeholders, for ex« 
ample, could not listen to an allegation that the retour of 
service had proceeded on insufficient evidence. 

Besides the HtteSj properiy so called, which a claimant is 
bound to exhibit to the ireeholders, he must also bring for- 
ward proper evidence of the valuation of the lands on which 
be claims ; and sudi evidence caimot be afterwards supplied 
in die Court of Sesdon. In the case of the vdualion being 



nnidiiced to tho firedboldfinL in evidence of the exhaustiiui of 
the precept. Afterwaids^ in the Court of Session, the original suine seems 
to have been pfX)diioedf which shewed, that the notary had signed each haf 
eoljy and not eadi^s^ a dicumstance whidi could not appear from the ex- 
taet, at the pages of the original saame are neccssaiily confounded in the 
fseoid. It appean from the Faculty Report, and from the fbllowingnotSBy 
thai the Court thou|^t the oljecUon to the saaine, grounded on the omis- 
akm of the notaxy, not to be well founded ; and hence the precept was 
beU to he rrhausf^^, and the enrohnent on the second sasine to be badi 

NtUtfrm^ At Anion Popart tif Lord PretiderU CampbeOy qfhU opmhiu 

* Oi^edkm toSasine.^Precept exhausted by former sasine.— Evidence 
^ produced to freeholders. But supposing it had not, it was competent to 

* produce and Ihnnd on it here as an objection to the last sasfaie. — 8ee- 
' W]|^ p. laa, Ac CSase of Ooedon of Whitlj, Ac; An olgection oT 

* thieklad 10 netjaa imrHL It does not merely reaolTe into a ground of 

* ^pnTy competent to a third party. It is a radical defect in the in- 

* vestiture, and amounts to a nullity of the title ;— «. ff. in the case of a 

* charter proceeding upon a wadset, the wadset right itself may be nco- 
' vi^hedaad ptrodnoed, to shew that it la an Improper wadset The first 

hoe ««a BaUe to no good olgection. Tlie act of sederunt 17fl6< 
to proceed on a mistslre xfuUke^Clerk. No doubt as to oompe- 

* tc&cy, if the objections be good. Fre^olders must be satisfied that 

« daimant ia infisft No good bisection to first sasine. Act 1606 does not 

*sppjy to instruments;—^, g. witnesses must subscribe every page oT 

a Mslne. ConatrucUon of act 1681 (168e>--enough to sign every lea£r 

C 



94 MiCHAEI^MAS MEETING. 

the qU extent, a retour prior to 1681 must be adduced; and 
where it is valued rent; a certificate, under the hands of two 
dimmiiwioners and of the clerk of supply, is the proper en- 
dance. In a case where a claimant n^lected to produce a re- 
tour in evidence of the old extent, and afterwards brought it 
forward in the Court of Session, his daim was rejected both 
in that Court and in the House of Peers ^ In another in* 
stance, the decree of the Commissioners of Supply, by wUch 
the claimanf s valuation had been separated from that of other 
lands, was liable to certain irregularities ; and, when the case 
came into the Court of Session, he stated, that, suice the com- 
plaint was given in, a new and regular division had been 
made by the commissioners, from which it appeared, that the 
valuation of his lands exceeded L. 400 Scots; but the Court 
refused to pay any attention to this new divisicm, and found 
he had no right to stand on the roll '. 

Until about twenty years ago, charters were reccnrded be* 
fore the Great Seal was appended, so that an extract afforded 
no evidence of that important step, which is equivalent lo 
signing in private writings. Hence, a chdnuEtnt who jprbdis- 
ced an extract of a charter in favour of his wife, with an 
instrument of saaine, which bore that a charter under the 
Great Seal had been produced at the time of taking infeft- 
ment, was nevertheless rejected by the Court ^. But, by sta> 
tatute 49th Geo. III. c. 4S, following out an act of sederunt 
on the subject, of llih July 1808, it was provided, that die 
Keeper of the Great Seal, instead of deUvenng the chatttr 
to die party expeding it, should deliver it to the Director of 
Chancery or his deputy, who, c^Ur making' the proper mi- 
^y 9f the sea&Tkg in the record^ should ddiver the charter 
to the party expeding it ; and it was fiuther enaefeedy ^ tlMt 
^ extracts of writs finom the raster of the great 8eaI,of ivhieh 

> Gordon «. Fzwer, 17th Februazy 1767; Wight, p. 140. 

* CaUender «• Bruce, 17th Jsnuaiy 17^5 $ Fac. 

* Nkbet V* Hope, 83d Febniaty 1790; Fac. 



WHAT TITLES TO B£ PKODUCED. 35 

* the ket mod date of aeaUiig shall have been duly recorded, 

* (mdi cKthicU being certified in du^ form by the keepers of 
' the said recoids), ^mB make entire faOk in aU caeei^ ex- 

* oepdng m case df iin]>r(^tion.^ In virtue of this enaot- 
ment, therefore, it would be cbmpeteilt now to claim on sudi' 
■a extract of a diarter as is mentioned in this claiise; but, 
iMi respect to all extracts Under the old law, which do not' 
bear the fid of sealing, the foimer rule will still be eitforoed, 
that a claim of enrolment cannot be made upon them ^ 

Thoe is one excqytkm from th^ rule, that a claimant must 
pmduoe his cfaartei' eb well as bis sasine, to entide him to 
beeoioUed Hie statute '1594, c. 914, wUdi was passed 
at the time when precepts of sasine were separate from the 
dbarters to wbidi they refer, provides, that, after forty years, 
die want of pRMAimtorieB of resignation and precepts of sa- 
rine shaft be no ground of reductum, or of any quarrel what- 
soever, nhere the charters and saanes are extant, the char^ 
tcr being held as evidence ot the procuratory and the sasme 
iflthe pieeept. On the ground of this statute, an heir-appa-^ 
wfab -produced two retours 6t his aiioestor, with the ss-' 
MbWii)^ ihsreon, of more than forty years* standing, 
imtiiid not exhibit Che precepts from Chancery, was found 
eatftled to be enrolled ^. ''t'he same rule would apply to a 
ahmhiff producmg a' sasine in his own pefson, taken forty 
jisu ij agp^ and proeeedifi^ on a retour'; aiiid it seems of no 
timaequeiiee whedier the retoor be produced or nc^, for the 
is the jmanMOiS wittfttnt df tile sarfne. One, how."" 
vy^wiki aiittiild ifier^l/ pi^tK:e a' sasbe prooeedmg on tfie 
in k idiarttfV sMtough of forty years standing, wbuti* 
doHie entitled tb ^niirbhiient \ for Mw tlie pTiBcept Is part oT 
tiaf dlivMr ; and if die dne is not prddoced the oiUier is not 

^NkJiolion V- Chancellor, 15th May 1819, Fac. where the (question 
vdirtBft to the eztiictofa charter in 1731. ' ' 

^fsfliUaBft «.^1Pfitil,'10lh'7tBmuCi^ 1981 $ Fac. 

' See Tn^t, p. 248^. 

* See what is afterwards said as to the tatlss an apparent heir must pre* 

dBee» and the case of Nieholaon 9, Chancellor, nrf^ 

C * 



36 MieUAEI.MAS MEETING. 

pmduoed either ; and when they wexe separate, it would have 
bees- nepeasary, under the ad 1691s ^ produce the charter 
and the sasine, although not the procuratory or piecept.* 
By the prescription act I617r c Ift, also, it is necessary that 
the charts should be produced. 

The general rule, that fredioldevs are not entided to g» 
beyond the cUinanf s charter and saeine,. has been enfarocd 
undo* a variety of drcumatanaes. It has been held to bein* 
competent to go into any inquiry respecting the rights to the' 
lands prior to the daunanf s <^rter, with Ae view of shew-* 
ing either that his author had no power to convey the sub- 
ject from being previously divested, at that his author^s title* 
laboured under any defiect, or that his own charter was ixr^ 
gularly obtained ; and this has been held even whaee the evs^ 
dence of the objection appeared from the minutes of the frse- 
holders themselves, or fran the documents laid bafore them*' 
In one case, it was objected to the titles founded on, that it 
appeared from the minutes of the frediolders thi^ a former 
claim had been presented by the saaoe ponEMm, in virtue of a 
charter and infeftment in the same lands, which (barter pn^ 
ceeded <m a disposition by the same individual who had grant- 
ed the diqx)6ition aa which the charter now founded on pio-^ 
ceeded, and that,, consequently, the granter of the diflpoaitJOD 
had been divested by die first investiture, and the second was 
inept The Court, however, held that it was incompetent to 
go into this previous inquiry ; and that, bb the charter and 
sasine produced were eaijbcu unexceptionaUe, the ^1^i"wp*. 
was eitfitkd to be enrolled ^ In another case, wheie a datnw 
aot produced to the freeholders a diqmition to hia fiiCher^ 
and sasine thevsoo, a diqxMition by his father to himsdf» and 
sasine thereon, and a charter ornifirming both sasines, it waa^ 
objected, that bis father^s sasine did not engross the whole 
precept contained in the disposition, but that part only wlucfa 
rdated to the lands in which infeftment was taken ; and it was 

^ Adam v, Fsiqufaar, 4tii July 1800; Ftc. 



COMP£T£NCY OF OBJECTIONS. S7 

iMJifHinfflj tiiat this objection mi^t be competently oonsi- 

iaedj beouiae the duurter confinned both sasines, which were 

th e i rf are insepanible^ and both filmed part of the claimant's 

tide. The Court of Session, howerer, held, that the iree- 

holders had no right to go back to the author's titles; and 

Ihaft, even if they had, the otjeclion was ill founded ^ In a 

And caae, a title had been made up, by taking infeftment 

OS the pmxf»t contained in a disposition, and expeding a 

diancrofcoofinnation; and a daim of enrolment on that 

tide had been rgeoted, on -the ground of the daimant*^ name 

liebg erroneously staled in the record df the sasine. There- 

4iAer, a dunter of redgnadon was expede upon the procunu 

4ory of the sane dtspodtion ; and the precept of that charter 

having been conveyed to another person, he took infeftment, 

and dsjmed enxofanent on the title so made up. To this 

tide it was. objected, that the precept in the origimd dis- 

yoMm was exhausted by the infeftment in £Eivour of the 

^miffotl disponee, that the fee was filled up in his person, 

and Aat the -subsequent resignation was incompetent It 

"waa answeved, Jlral, That the tides produced being ex Jade 

-confkte, the fireehdders had no right to look fiurther ; sc^ 

-cemSg^ Iliat the sssiae in favour of the oiigind disponee ha- 

'yfrnghook impraperly recorded, it must be held to be null 

«m1 'vusd, and consequently, that the tides subsequently made 

vBf by wwignatinn were quite r^ular. Both answers were 

Wd iD-be condusiTe by majorides of the Court, aldiough 

the UMgorities did not in both instances consist of the fsame 

judges; and the daimant was found entided to*be enrolled'^ 

-inlflbe maamer, it has been decided, that it is not competent 

to allele dnat die charter is diaconfonn to the signature on 

wUch it f ftp o cceds^ Neither can die freeholders refuse en- 

rohnent, because the commission under which a person has 

> Bon V. Waldie, 4th February 1314 ; Fac. 

' Kibble r. Sbaw Stewart and Spiers,' 16th June 1814 ; Fac 

' Bum V. ikdsm, 17th February 1779; Fac 



S8 MICHAELMAS MiSETING. 

j 

grwited a chartar or dupoAtioii for aikither^ has not bean pt9» 
diiced to them» along with the deed itaeil This was decided 
in relation to a httorloeotuioria, who had been appointed bf 
the Court, and had granted a charter for his ward in the 
dounty of Sutherland, where votes are allowed on ri^ts hdd 
of iubjeet-superiors ^ ; and also in relation to oommnsioiiahi 
who had granted for another a disposition, asogning the v^ 
executed precept of a charter *• In this hitter case, however, 
an extract of the commission was produced in the Court of 
Sesoon. The oommisdon, it was observed on the Benbh, 
farm6 no part of the titles of a claimant, although, in oidsr 
to support them^ he is no doubt bound to produce it if ce^ 
quired; but as he may not have it in his power bstsatbjr to 
exhibit collateral evidence of this sort, he is entitled to pn>. 
duee it in the Court of Session, should he be rejected by the 
freeholders for not making such production before thenL 

In several instances the general rule has been applied, wheve 
it has been alleged, contrary to the eofjucie nature of tiie 
f^hdlder^s right, that the subject on which he has daiased 
/ his vote did liot truly hold of tlie crown, or, at least, that he 
was not truly the immediate crown^assaL Thuis^ it wu eb- 
jected to the rights of certain persons infefit on a crown holcU 
mg, that the lands were grven by act of Paijliament to the 
King^s second son, and that, consequentigr* they iriere sot 
held of the King; but, on the ground, partly, Aat theaot 
did not eo ipio vest the lands in the King^s seoood son, and 
partly, that all which the statute 1681 required, was an in- 
feltment on a crown holdingy the obfection was repdUd ^ 
On the latter ground, also, the objection was in the sam^'i 
repelled, that some of the voters heid fermeily of the 
of Seaforth, and that they had not bought Uie supetiority. 

1 Msckay v. Houston, 24th February 1706; FoL Diet. iii. 417; Bell, 

i).i6a. ....... 

> Proctor o. Camegie^ Uth May 1799 ; Fa^,; Bel}, p. ^0. 

9 Munro v. Mackenzie, 30th July 1745 ; Blch ; Falc I 126. 



COMPBTENCY OF OBJIECTIONS. S% 

b like manlier, in aneCher case, a qualification waa founded 
JD part, on certain lands which had been held of an hospital, 
and to wUdi lands the daiinant had obtained right, on the 
ledgnatiaD into the hands of the crown of the superiority of 
Aoae lands by the patron of the hospital, who conceiTed ha 
had nf^ to that superiority, in virtue of the act 1661, c 04, 
winch enacts that the vassals of certain clerical establishments 
AaH hold of the patrons as supevion. It was objected, that 
this act ifid not apply to hospitals; and the Court, although 
dKy had considerable doubt as to the ri^t, yet gave effect 
CO the fraeholder^ title, as being founded on an infeftment 
onder the Oveat Seal K In a later case, where lands had 
been bought at a judicial sale, and described as holding of 
the crown, it was objected to a claim of enrolment on a crown- 
charter of these lands, that they truly held of the fiEunily of 
liOAian ; and two frcehdders present, substitutes of entail of 
ihatianuly, declared their intention of bringing a reduction of 
the charter. The freeholders gave effect to the objection ; but 
the Court of Session altered their judgment, with costs, al- 
thoo^ the snmmons of reduction had been actually execute 
ed before die oomplsint was advised ^ 

A ISce rule was enfoiced in a late case^ where it was ob- 
jeeted to adaha, that the lands, although, by the charter pro- 
<Iooed, they were held blench of the crown, truly formed part of 
the bmjgageproperty of the city of Edinburgh ; and, in evidenbe 
of this, refeieace was made to some ancient charters in favour 
of the city, in addition to certain expresstons in the crown 
charter itsdf, on whidi the claim was founded. The Court 
refitsed to go beyond the clidmanf s titles, and dismissed a 
ewnplainC against his enrolment '. 

In a case, however, where several qualifications had been 
oested by the Earl of Fife on fishings, they were rgected, 

' Donbar 0. Budg^ 2Sth February 174A ; Elcli ; Fak. 

* Sibbald o* Bougks and Kerr, 18th December 1790; Sup. to Wight, 
p.SS. 

' Gibson V- Forbes, 16tb Dec. 1817 ; Fac. AfRnnea on appeal, 2Sd 
3iaj 1821 ; Shaw*8 Appeal Caaes. 



40. 3<ICHA£LMA8 MK£TIKG. 

becsuae it appeared bom a deed tinder the late Eari^s hand^ 
that these fishings weie held of the borou^ of Banff, and not 
of the crown K Aoeordingly, Mr Wi^t has laid it down 
as a general principle, that where an objection is palpaMe, 
and can be estdblished binder the hand of the claimant or of 
his author, without any fartho: investigation, the Court will 
depart from the rule which limits them to an fxaminatinn of 
the daimant^s charter and sasine ; and, in suj^rt of this opi- 
nion, he refers to the case which has just been quoted '• 

There are other exceptions to this rule. Thus it has been 
settled by a variety of cases, that it is competent for a daini- 
aat to adduce extraneous evidence in the Court of Session, 
in order to remove objections, stated before the fipeeholderB, 
against the ideniUy of the lands contained in his titka, with 
those referred to in the entries in the cess books on which he 
founds in proof of his valuation'; and it appears that it 
would be also competent for the freeholders to consider such 
extraneous evidence, if the claimant should be provided with 
it in their court ; imless, peribapsy the eomidicated nature of 
such an investigation in any particular case, should render it 
inconvenient for the consideration of such a meeting. 

It has been already mentioned, that it is compelcnt for 
fteeholders to object to the manner in whidi a daimant oo». 
AectB himsdf with his charter ; as, for instance, to maJntain 
'that the preospt of the charter has been exhausted by a pre- 
wioHs sasine ; which a ll e gatia n truly amounts to this, thai the 

* Abercromby v. Alewood, 17th June 1777; W^t, p. asS—- -Fhnik 
the Ftcidty Bepoit of tUs esssi it ^ipesn thsi there was sin sa 
olijectkmXo.lhemdiiatiQp of JJiedthiogs in this eaas^ •• a junto of ftee- 
hdden had taken upon themaelves to divide a cmnulo, aa if it had stood 
in the countj books ; srhereaa, the subjects were not valued in the coun- 
ty books, but had always paid cess in the town. Mr Wight, however, who 
was counsel in the case, gives the other ground at the Ibundation of the 



* Abercrombj, Mfx He also refers to the case of Pierce against Hsy. 
See this case, Fac CoL July 1771- 
-^ See infra. Proceedings in Court of Session on Complaint. 



COMFET£MCY OF OBJECTIONS. 41 

It is not iofcft, in so far « regnedt the tittn on which 
htbuadBK 

It 18 abo settled, that, where a jfreehoUer has been akeady 
caroHed an certain lands, and another claimant comes for-* 
wwdwith eap Jack imeoLcepdansble titles to the sane' lands, 
derited fioin the saaae auAor from whom the' right of the 
pnson abeady enrolled was obtained, it is oompeteDt for 
the freehoUers to go to their own record for eridence in sup- 
port of the objection to the new daimant, and to rgect him 
on the fact of the previous enrolment beii^ ertsMidied '. 

It csanot, however, be laid down as a general rule, that in 
ail caws an objection to a qualification may competently be 
eolertaiDed bjt ftediolders, because it is established by evi- 
deaoe derived from ^Kir own recrards. This will appear from 
some esses alneady mentioned, in which it was held not to be 
ooupelent to conoder cerlam objections, although the evi- 
deace in support of Ifaem appeared from the minutes of the 
freelioldecs^ 

With respect to the titles which heirs apparent must pro- 

dnee when they daim enrolment, the statute l6th Geo* II. 

c 11. §10, psovideB, * that no heir apparent shall be enrol. 

^ led until his prsdeoessor^s titles are produced and allowed by 

^ Ibe freeboideis as a suffideot qudtf cation for his voting for 

<« member of parliament.' The tkles here alluded to are 

the seme ^irfiii^ would have entitled the ancestor himself to 

be enrolled ; and their produetian is equally required, at- 

though die ancestcff himself may have stood on the roll ^ A 

eham made by a person m heir apparent to his fiither, who 

' Seep-SSL 

* Bihing 9. Httmlion, SOth Jan. 1819; Fac. 

^ 4ee tlie csues^ Adam «. Farquhar, 4th July 18O0> Fsc ; and Kibble 
ikilwr Steirart and Spelia, ISth June ISli, Fac; mentioned, p. 36 
and 97. See ibe sulyect, in what circumstances new evidence may be 
isoemd in the Court of Session, afterwards treated o£ 

• Wi^t, p. 847. See more particularly «n/Va, under Votes on Appa- 
iwcy, bow far the titles of the apparent must always be such as would 
bare entitled the ancestor to enrolment 



4S MICHASL.MAS M££TIMG. 



fftaoi wmiay ymxB am the rdl* tras se^ictcd^ boonnehe 
had ne^^ficCed to produoe his fatber^s charter, althouighhe 
dkerwaids exhiUted the diarter in the Court of Setjridn ^ 
It 18 of course equally necessary to iiroduoe cvidenoe of the 
valuatioDy as it is to ejdiibit the titles of the Isods, and this 
is requisite whether the.anoestor has been eniplled or not'. 

A ease has been already noticed^ in whidi it was decided 
that an heir apparent who produced Ae retour, and sasineidU 
lowing thereon, of his ancestor, bearing date more thaafof!^ 
years beibre^ was entitled, in virtue of the act 1594, c. S14, 
to be enrolled, although he did not exhibit the precept fiDcan 
Chanosry, which was the immediate warrant of. the satinet 
If the samne, hbwerer, has not proceeded on a service, but on a 
diarter of resigaatioii, sudi saone will not be of itself a suffi« 
eient wavrant of enrolment, althou^ of more than forty yesn^ 
standing. The'act 1594 was passed at a time when precepts of 
ssSrine weredisdnet£Nni the diarter; and dispenses, after £arty 
years, with the pruduction of procuratories and precepts, if 
the charters and sasines be extant, — holding the diarter to 
be evidence of the procuralory, aad the sasme of the pae* 
eqpt But where the preempt is contained in the diartetf it- 
sdf, if {he one is lost the other of courseis lost alsa AAA 
the act 1617, c. Ifi, rdating to the long prescr^tion, je^ 
spiiies a charter and sasihe even aft^ forty year^, iml^ss where 
the sasine proceeds On r^ours or precepts of dlor^ oomiak 
tn a case where the heir sf^iarent product <mly an cxtrect 
6t a duurter of resgnmtiaii, and an extract of the sattne these* 
vf^, in'&voiir of hts ancestor, of mora than forty yeats' 
standing, along with his own retour of service and precept 
thereupon, he was found not to be ^titled to ^rdment, al- 
though the extract of the chsirter shewed that it ptooieded 
on the resignation of ihe ancestor hinttelf, and so was not 
acquired in the character of a singular successor, who is less 

* Moodle 0. Baikie, 10th Feb. 1781 ; Wight, p. 248, and Fac 

* Haldane v. Trail, 10th Feb. 1781 ; Wight, p. 348, and Fac 
' jbaldane; n^. See p. 36. 



RJEflTRlCTIONi 4t 

fimMved in audi ^pKsdoiui thin w hfltt ; ^md aMioiil^ the 
tUmmaes relour of service bore tfi«t; the anoesiwiB charter 
had proceeded under the great seal ^.l 

When a claim of lestcktioD ia made, it ia not ileoeteary to 
lodge the titles on wfaidi the chamapt wasorjgalally enrolled *« 
Eeetrictiflfli ia not a neir enrdment, but mcfcly a limttatimri 
of ^ qualification to a part of die ordinal aulgect The 
ft e ffholdw a, dieiefixe, can have no right to canvass the me- 
rits of the fredioki a second time, wUdi is the only puqiose 
fe wiiicb the titlea^ that is the charter, sasine, and ooonect- 
ing deeds, can be demanded. But the^dainumt ought to 
produce evidence that the pcnrtion of his qualifiottion wUdi 
he p io p o ueo to retain is of the DBquiste vahialion ; unless 
idiere the part aJJenated bears a very trifiing proportion to 
diatieCamed. 



Having consideted the natiire di the titles wbidb must be 

laid before the freeholders, and the objections whidi may be 

c erop eieBtly urged befoie thein to a quaMcatkni, we now 

gipoeeed to the farther coiigiderstion of the proceedings at the 

Mkhwrilmas mcetJDg. 

Froeholders are jwt entitled to refuse^ or even to delay, en- 
ralncDl, an the gnwid that the cfadmaiit's valuation is the 
mAjett at a process of reduction iii die Codrt of Session. 
Thus, wliere die fteehddiesrs had delayed juc^g of the vali- 
dity rf eertaift qualificatiMis, till die issue of a process of re- 
daction at the valuadon, reserving all objecdons t&l then, 
the Court of Session ordered the chumants to be emxilled, 
and refused to go into an examination of the merits of the 
ob j ec tiun& to the claimants^ dltes^. This ju^^dtt, in so far 
as die daomants were admitted to the roll, without any exa- 
nmiation of such objecdons as might oompetendy have been 

' 16ih May 1819, Stewart Nicholflon e. Chancellor ; Fac' 
> Oerdon «. FtSxie, 16th Jim. 1819 ; Fac 
' Boae V. Gordom Jan. 1766 ; Wight, p. 134. 



44 MICHASLMAS M££TIKG. 

ovged bdbre the frttholdere, is eertainly liable to objection ; 
beoanse a dttmaiit raight thus be admitted who tridy had no 
legal qualification ^ ; but if tiie Court had taken upon them- 
aslTea tiie dedermination of tiie'merits of mich objections, tiie 
decukm, in other respects, appears well-feunded *. It cannot 
be taken for granted, that the issue of the process of reduc- 
tion will be unfavourable to tiie claimants ; and if tile mere 
dependence of sudi a process were to constitute a good ob- 
jection to enndment, an action of that nature would be con- 
atantiy resorted to, upon frivcdous pretences, to defeat claims 
of eniolment. Should a decree of reduction be obtained 
aubsequentiy to the enrcdment, this will constitute such an 
akersftion of circumstances as will authorise the striking the 
freehoUer off the ndl '. 

In a subsequent case, also, where the objection of multi- 
plication of superiors was urged by the vassal, who was also 
a frediolder, and who produced to the meeting a summons of 
reduction of the qualification of a claimant, on the ground 
of the multijdiGation of superiors, the Court of Session held 
that it W9BJU8 iertii to the freeholders as a body to entertain 
that objection, and ordered the claimant to be enroUed \ In 
this judgment, it was necessarily imfdied that the existence 
of the action of reduction €{ the quaUiksation was no bar to 
OHolment in the moan time. 

In a case, however, where recentiy after the passing of the 
act lOtfa Geo. II. an ^iplkation had been made to the Court 
^f Session to have certain fvediolders expunged from the 

1 See Wight, p. 135, Note. 

* U is stated by Mr Wight in the aboye note, thit, in the subsequent 
ease of CampbeU o. MscneUl and MaceenoeUle, Silfc June 1778, Fac., 
the Court, in somewhat aimiiar cireunstanoeat scisnml <«ry^ w * to 
listen to any oljections which the freeholders might state, but none wne 
entered. 

« Wight, Note, ntpm. 

^ Sloan Lawrie «. Hamilton and Campbell, Ist Feb. 1781, Wight, 
p. 291. 



NXW CLAIMANT ON SAME I«ANDS. 4ft 



roUf in temiB of that act, and during die pendenoe of that 
pRMXtB, those frediolders had been tumed off the. roll hy 
oertain othera of the freeholders, the Court of Session, on a 
oamplatnt against this latter proeeeding, found it to be a con. 
tempi of their authoritjr, and ovdoed the freeholders who 
had been expunged to renuun on the roll tiU the issue of the 
Minner process^. 

Where a person mi the idl has oonveyed his qualification 
to another, it is not incumbent on the lifter to hdgt olgee* 
tioos to the continuance of hb author on the roll, but the 
diyonee is entitled to amdment on production of his titlei^ 
althoi^ his authc»r haa not yet been struck off the roll '. 
The duty of keeping the rdl free from persons who have ap 
rig^t to be upon it, rests with thefrediddeps themselves ; and 
if they have neglected to lodge objections to the continuanoo 
on the loQ of one who is denuded, the new claimant ought 
not to suffer from such neglect. A case oocursed invcdving 
a aqmewhat aimilar principle, dthou^ under different dr-n 
cumstanoes. A p^son had been admitted on the roll, partly 
on certttn draich lands, although he appears to have had 
ri^t mesdy to the feu-duties of those diurch lands, as as- 
signee of the lord of erection ; whilst a second daimant, who 
asked enrolment psrtly on those lands, deriTsd his li^ from 
the /amfly who had been ibe chuxdi vassids in those lands, 
and had had them fat a oelkiti»y contained in their crown 
chartera^. This second daimant was refused enrohnentata 
Michadmas Meeting, cm the ground that the other stood al« * 
ready on the roll on these lands. At a subsequent deetion 
meeting the new claimant agsin iqqplied for enrolment, and 
the pesaon already on the rail dedined to take the oath .of 

* Munro o. Kadrenzie, 6th Feb. 1746; FoL Diet iiL 480; Falc. 
« Skene a. Adam, Uth December 1775, Fac; Wight, p. 907* 
' In 1020, the JLords of Erection resigned into the hsndB of Charlee I. 
their eaperioritiee of knds, &c. reserving right to the leu-dutlet, imtU a 
compensation should he made for these feu-duties»— <8ss iht Mh$i qf B$»i^ 
Mr ThomuotCt Adt^ toL ▼. p. 188. 



46 MICHAELMAS MEETING. 

poneinoii ; but the finecMdets refiuedehfaer to strike off the 
ititet, or tb admit diefonner. Before the Court prapouiloed 
judgment on tlieeomplaiiit of the'rejectiBd claiinantf theindtvU 
dual on the toll had been oidered to be striick offibr rdfiisng 
to take the 'oath of f)068e88ion ;'but the Court found^ thit the 
fidbner ought io have be^ admitted, when he ^t made his 
iqsplication at the Midiaelnias meeting, thai is before ^ 
bitter had been struck off ^ It may therefore be hdd^ 'that 
the Court' pirodeeded'on the principle, that, as the one had no 
valid qualification, the cireumstttace of Us being on tike roil 
was no bar 'tO'die daim of the other, who had the true ri^t 
BUt where a pierson has been abeady enrolled on certain 
knds, and there is no evidence either of m^ginal want of ri^t 
£d those holds, or of being subsequently denuded'; a new 
claimant bringihg fcvward a title to the same lands, although 
ex facie unexceptionable, has no right to be enrolled oti that 
tide. This was held in a case where a claimant had acquired 
right to certain lands from the same author^ who had pre* 
viousiy conveyed t&em to another person already enrolled on 
dwse lands ; and in suj^rt cf tlie objection to the new daim, 
reference was inade to the charter of the formear claimant. 
It'was answered, that it was not competent to look at any 
put df the aiiterior progress. ^The Court, in dedditig' diat 
thb second daittiant had nb right to be added to llie roli« 
held it to be deatiy competent te Che frediolders' to go to 
thrown' record fiftr ^d«n6e of the ftct, that another was 
abesdy^enrdCfed on the' Mme hmdk ; aifd as h& had not &I 
tUfSkdy they were' df opiikion, thai another Had nd ti^t tS 
(fame forward Vridi a cbkitti on tile satn^ liitids *. ^ 
'^' Frediold^ 'cibnot altiat* the prdiieediligb of one meeting 
)st any subsequent meeting. In <me instance^ only two^free- 
holders hsdi)een pretait it a Midmdnias' court'; and oc6t bf 
them, the preiSrfenll, aS^g thaf the nanledf Ut niMk iSre^ 

' Bojw fk HsmfltOD, 21it December 1780 ; ^Wight, p. S06. 
* Btbling V. HsmUtoih 90th JaavAbt 181^~]P^ 



NEW CLAIM OK SAMK TITLES. 47 

holder hid been unproperly, at a fimner ineeling, placed af* 
tor that of the other frediolder present, had ordered tbe 
derk to rev^ise this order. l*he other freehdder, ivko had 
dedined vothig, complained to the Court of Session ; but ob» 
jections having been made to the competency of the eom- 
plaint, he raised a dedaratory acdon, to have it fovmd that 
he was entitled to his former place on the roll ; and this ac- 
tion having been taken up along with the complidnt, the 
Court ordered the complainer * to be restored to his former 
* place on the roll*." 

It is competent, however, for freeholders to judge of a new 
claim of enrolment on titles which have been rejected at a 
previous meetmg *\ and this has even been held to be the 
rule, where the freeholder had been previously on the roll, 
and did not come ftvward with his new claim for twenty years 
after having been struck off'. 

Freeholders have no power to dte witnesses or to adminis- 
ter oaths. Hence a parole proof, in a court of freeholders, 
even with respect to a point of which they may competently 
take cognisance, would be necessarily imperfect and ineffi- 
dent; and it is rather believed would be hdd altogether in- 
competent In one instance, a meeting of frediolders went 
so far out of the proper line of their duty, as to administer 
oaths to certain members of thdrown body, and to take thdr 
evidence in support of an objection, that certain sasines on 
which daims were made had not been entered in the record 

' Sankine and Iryine «. Ramsaj and Colyil, 23d Janiiaiy 1707 ; 
Fac Mr Wigfit, who was counsel in this case, obaenrea, in a note, 
at p, 166, that no order waa spedallj directed to the aheriffUsleik by the 
Court, and thai it waa left to the fieeholders themadvea to gm obedience 
to the order, the aherifildeik being onlj bound toact in those cases where 
he ia tpedaiJlj required bj statute. 

* Wight, p. 16& 

'Montgomerie v. Cathcart and Oswald, 2d March IBIS; Fac See 

also Bunbar «. Urquhart, 23d February 1774; Fac. 

4 






48 MICHAELMAS MEETING. 

of the dale home by the atteatatioii of the keeper of the re- 
gister. When the case came mto Court, the judges not only 
npiobated the ooUrae whidi had been taken in this inetanoe^ 
but expressed a general opinion as to the unfitness of parole 
proof in a meedn^of frediolders^ As freeholders, howercr, 
may determine certain facts, such as the diaracter of appa- 
rency of a claimant, on their own knowledge of their truth or 
fidadiood, so it appears to be competent, for any individual 
members \jt the meeting who have had bettor opportunities of 
information on the subject than the others, to give their de- 
Bborate assurances as to the trudi or falsehood of such facts, 
for the guidance of their brethren. It is also quite compe- 
tent to examine a claimant by interrogatories with respect to 
his /TOSMtnon of the estate on which he asks enrohnent, and 
as to any circumstances from which the qudity ctf nominaHty 
may be inferred *. 

^ See the Opiniona in cue of MsckctniAp «. Madeod, ath Februsiy 
1768, aftenrardi quoted under R^gistrmtion of Saiine. 

* See tUB last sul^ject more ftilly tretted afterwardt under the Thist 
Ottlh. 



'I t . 



( 49 ) 



CHAPTER II. 



OF THK FBEEHOLDER^S QUALIFICATION IN RKSPECt OF ' 

ESTATE. 



By die act 1681 it is dedaced, that none ahall have vote . 
in Ae eleetioD of oommissioners for Bhires ^ but those who at 
< that tune shall be publidy infef t in ptoperty or superiority, 
' and in poasesaioa of a forty shilling land of old extent, 
' hoiden of the king or prince, distinct from the feu-duties in 
' feu landa ; or, where the said old extent appears not, shall . 
' be infeft in knds lyable ia puUick burden for his Majesty^s 
' sappties, for four hundHed pounds of valued rent, whether.. 
^ kirk lands, now holden off the king, or other lands holding 
' fen, waird or blench, off his Majesty, as Sang or Prince of 
^ Scotland." This clause, as well as some of die subsequent; 
provisions of the act, suggest the different matters to . be 
treated of in considering the feudal qualification of the free, 
holder, and these shsll form the subjects of the following 
sectioos. 



• r 



SECTION 1. 

Of the Holding of the Freeholder's Estate^ and the Constitur 

turn of QMdifications, 

According to the genius of the feudal system, land is the 
subject of the double right of superior and vassal. By the 
theory of that system, the king was originally the feudal pro- 
prietor of all the lands in his dominions, and conveyed por- 
tions of tiiem to different individuals, to be held under him, 
OQ the condition of military service. In process of time, 
these erown vassals came to have the right of conveying their 

B 



50 NATURE OF SUPERIORITV. 

estates to others, to be held under themselves, on various con- 
ditions ; and thus to have the double character of superior, 
in relation to those holding under them, and of vassal, in re- 
lation to their sovereign. By this system, however, the su- 
perior under the crown is by no means divested of the lands, 
and, even at the j»*es^nt day, continues to retain, in the eye 
of the law, a right of a very high description in them. He 
enjoys what is termed the dominium directum^ which is a right 
of pioprietorship, limited only by the dominium utUcy wfaieh 
isi vested in the vassal. According to strict feudal notuMis 
indeed, the dominiwm diredum or superiority is the mace imr 
portant estate of die two ; the vassal^s right being more pro^ 
perly that of a mere usufinactuary, making aai annual prest*^ 
tion to his superior, for the Fiberty of enjoying his land. 

In the feudal series, therefore, land is a subject aifording 
an estate of its own proper nature to tach individual, from the 
superior under the crown, to him who actually enjoys the 
fruits of tfie ground ; and each of diose mdividuak requires a 
feudal title to the subject perfected by sasine. 

It is upon these principles that the nature of the right 
which is requisite to constitute a freehcdd qualification is 
founded. The statute 1681 requires that the lands which 
shall afford the privilege of voting, shall be holden of the 
king or prince, in property or superiority. The estate in the 
crown vassal may either be an absolute right of property, 
unlimited by any subvassal, or it may be that kind of estate 
in the land, which is the dominium directum only, and which 
is limited by the property of the subvassal. Both these 
kinds of right in the crown vassid are, in the eye of law, 
real estates, and are held of the crown. In both the estate i& 
feudally vested in the superior. In the case where he is not 
possessed of the dominimm utile or property, Aere is a vassal 
who holds that right under him, and who is eqiidly with 
himielf feudally vested with the estate. 
This latter drcamstance, that there shall be a v a«Mil^ is 



MOD£ OF MAKING FBEEHOLDS. 51 

emotial, whenever a freebold qualificatioa is rested on a right 
of superiority alone. It in truth becomes the test that there 
is a proper feudal estate in the superior held of the crown. 
For, if he does not possess the property himself, and if no 
vassal holds it under him, then it is plain, that any right 
which is supposed to be in him, must either be a mere ncm- 
entity, or an anomalous excrescence on the proper feudal se- 
ries. Any cliumant, therefore, on a right of superiority, must 
be able to shew, on the one hand, that he holds the lands 
immediately of the crown ; and, on the other, that a vassal 
has a proper feudal title to the [ntiperty under him as supe« 
rior. 

Hence arises the well established rule, that a person who has 
the full and undivided right of superiority and property in 
lands, cannot create a freebold in another by any conveyance to 
him, under reservation of the property ^ There is here no feu* 
dal separation of the superiority and property. There is no 
creation of a subright ; and the whole proceeding is anoma- 
lous and unavailing. 

When such a proprietor wishes to constitute a valid firee- 
hold in the person pf another, and to retain the property for 
himself, some mode must be adopted which shall create a va- 
lid feudal subright. This may be accomplished either by 
means of a third person^ or without such aid. 

In the former case, the crown vassal conveys to a trustee 
the lands to be held base under himself. The property and 
superiority are thus feudally separated, and a subright crea- 
ted. The crown vassal then conveys to the person who is to 
have the fieehold, the lands, excepting from the wammdice 
the feu-right already constituted, and granting procuratory 
of resignation. The trustee then reconveys the property to 
the truster. The disponee of the superiority, when infeft on a 
evowa charter, obtained in virtue of the procuratory, is feu- 

^ ElUot «. Shaw and OliTer, 1769, "Wl^t, p. 25S; Baron Norton v. 
Andetaon, Sth July ISU, Fac. CoL See tbia caie mentioned, p. 53. 

d2 



52 MODE or MAKING FREEHOLDS. 

dally vested in a proper freehold qualification ; or, after hav- 
ing granted the feu-right, the granter may resign into the 
hands of the crown, and obtain a new charter, the precept 
of which may be assigned, in the disposition, to the intended 
freeholder who completes his title by infeftment. 

Where a proprietor wishes to create more than one quali- 
fication, retaining the property, it is advisable that, in con- 
stituting the Bubright, the lands and feu-duties should be so 
divided, that it may be ascertained what portion is payable 
to each superior. This may be accomplished either by se- 
parate conveyances of the several parcels of lands to the 
trustee, or if one conveyance is used, by regularly dividing 
the lands into those parcels, and determining the feu-duties 
payable for each parcel K 

It is a fixed principle in the feudal law, that one who ts 
not infeft in lands, but has merely a personal right to them, 
cannot effectually grant warrant for infefting hifl disponee. 
He may, indeed, convey his personal right, and assign the 
unexecuted precept of sasine, which will substitute the dis- 
ponee in his right, and enable the latter to obtain infeftment ; 
but he cannot grant a warrant, flowing frqm himself, for com- 
pleting the investiture by sasine. Another doctrine, however, 
is recognised, which, in general, obviates the inconvenience 
attending the former. When the author of a disponee ac- 
quires a right appertaining to that which he has conveyed, it 
is held to be immediately transferred to the dis^nee, or, in 
law phrase, to accresce to the previous right If, therefore, 
in the case under consideration, the author, after granting 
precept of sasine, and after his disponee is idfeft, takes sasine 
himself, that infeftment aocresces to the disponee^s'right, and 
validates the precept and investiture following on it 

From these principles it follows, that where an uninfeA 
proprietor, in constituting a feu-right, has granted warrant 
for sasine, and where any thing has occurred to prevent the 

^ See Wight, p. t6S, note ; and Bell, p. 74. 



MODE OF MAKING FKEEHOLDS. 53 

accretion of the author s infeftment, the feu-right becomes 
incapable of being perfected by sasine ; and all attempts to 
convey the superiority to any other become unavailing, be- 
cause there will be no vassal in the lands, contrary to the 
fundamental rule which has been already expkuned. If an 
uninfeft proprietor dispones to be held base, and grants pre 
cept of sasine, and the disponee is infeft ; and if the authm 
then. conveys the dominium directum to a third person, who is 
infeft on the assigned crown precept, he can no longer take 
sasine himself, because he has denuded of his whole right ; 
and tlie infeftment of the disponee of tlie superiority cannot 
aocresce to the disponee of the property, first y because that 
infeftment is not in the person of the. author of the latter, 
and, secondly^ because it is only in the superiority ; whereas 
it is essential that the author should have been infeft in the 
property also, to enable him to grant warrant for sasine in the 
property ^ 

Whe^e the interest in land is divided between a liferents 
et- and a fiar, and attempts are made to constitute freeholds, 
questions of difficulty may arise. 

In a case which occurred a few years . ago^ certain trustees, 
who had got a disposition to the superiority of some lands, 
expede a crown charter of that superiority, but took no in- 
feftmait upon it. They then disponed the liferent of the su- 
periority to another person, with power to enter' vassals, and 
receive resignations ad remanentiam^ and assigned to him the 
precept in the charter on which he took infeftment. The 
dominium utile or property was then resigned ad remanentiam^ 
into the hands of the liferenter and fiars of the superiority ; 
and the liferent, with the consent of the fiars, granted a 
new feu-right to another. It was held, that the resignaticm 
was effectual, although the fiars were not infeft ; that the new 
subright, constituted by the liferenter, was not valid for a 
period longer than his life ; and that, consequently, a claim 

• Baron Norton v. Anderson, 6th July 1813; Fac. 



54 MODE OF MAKING FREEHOLDS. 

for enrolment on the superiority, which was made by a sub- 
sequent dispoDee of the superiority, was inept, as no sub- 
feu had been duly constituted ^ 

A few years ago a question of much difficulty occurred, in 
consequence of an attempt to constitute a liferent vote by an 
entailed proprietor, relatiye to the effect of resignation ad re- 
maneniiam by a trust-vassal, where the interest in the supe- 
riority had been divided between a fiar and liferenter. In 
terms of the special powers and provisions of an entail, a feu- 
right had been granted to a trustee, under condition, that, when 
required, he should reconvey with procuratory of resignation 
ad remaneniiam ; and a liferent had then been granted of the' 
superiority to a third party. It was objected to the qualifi- 
cation of the liferenter, that it was in the power of the grant- 
er and of the trustee at any time to destroy it ; because the 
efiect of resignation ad remaneniiam would be to annihi^ 
late the base right, and so destroy the superiority both fee 
and liferent, as estates distinct from die property ; or, if 
the liferenter, as well as the fiar of the superiority, should 
be held to acquire the property after the resignation of iU he 
eould only hold it as trustee, and so could not take the 
trustoath. The question was ultimately decided by the nar- 
lowest majority,— the nnnorit^ conceiving the objection to be 
wdl founded, but the majority holding that the hltarent of 
superiority being a distinct estate, constituted by infeftment, 
could not be a£Pected by the resignation €td remaneniiam^ 
and that, during the existence of the liferent, the effect of the 
nesignadon was suspended '. 

A proprietor nuiy create a freehold, without the aid of a 
trustee, by conve3dng his land to the intended heAolAetj 
who reoonveys the property to be held of himself'. Care, 
however, must be taken, that the obligation to reconvey the 

> Aedfieam o. Maxwell, 7th March 1816; Fac. In this case the liferenter 
was dead before the superiotitj was conveyed to the claimant 
* Bundaa e. Campbell and Alexander, 26th Maj 1812 ; Fac 
' Forrester r. Fletcher and Others, 9th January 17M ; Fac. 



CONFIRMATION AND KE8I0NAT10X. 35 

jMtoperty appears on Ae face of the titles, because, as ¥rill 
afkerwaids appear, the voter is bound to swear thai he has 
not made any dispoatioD, or promised to make any, other 
than appews from the titles ; and if the obligatioii do not ap- 
pear in the deeds, the freehold will not be sustained ^ 

When a person has obtained a disposition of lands, ccm- 
taining procuratory and precept, and after taking infeftment 
on the precept, has then expede a crown charter on the pro- 
curatory, which ebartei^ has contained a confirmation of the 
base infeftment ; it has been objected to claims of enrolment 
on the crown charter, and sasine following on the precept con- 
tained in it, that, as confirmation operates refro, and makes the 
previous infeftment a public one, the title made up by reng- 
nation becomes inept ; but this objection has, in more than 
one instance, been repelled '. In a case, however, where a 
diarter of confirmation of the baae sasine, taken on the pee- 
cept in a disposition, had first been obtained, and then, as a 
subsequent step, a title was made up by a new charter of resig- 
nation obtuned on the procuratory oS that disporiUon, the 
Court, on the special ground that the first sasine was null, from 
having been unduly recorded, sustained the title by resigna- 
tion, — a judgment directly implying, that, had the first sasine 
been good, the title hy resignation would have been inept K 

Not only does a bare Hght of supericNity pve the privilige 
of voting, but it was even decided in one case, although un- 
der special circumstances, that a superior who had granted 
a perpetual discharge of the feu-duties, was still possessed of 
such an estate as affiirded a qualification. The feiMluties 
had, so far back as the year 1627, been discharged for ever, 
but the superior still had right to the casualties ; the Court 

* FieehoHcri of Kincardineshire ff. Burnet, 30th Jolj 174S, and 19th 
June 1746 ; Falconer. 

' Ctnudngliam, Sd January 17^4, Elch. toL i. and 9 ; Stewart v. Karl of 
Fife, 20th February 1027, Shaw and Fac. 

* Kibble «. Stewart, lOih June 1814 ; Fac. 



56 PRO INDlViSO U16HTS. 

being of opinion that the discharge of feu-duties had merely 
been resorted to as a mode of evading the l^al necessity of 
feuing out the lands, which were held ward, at a competent 
avail, and tha< the right could not have been created ficti- 
Uously for the purpose of making a vote ^ 

The lands upon which a vote is claimed must constitute a 
separate and distinct estate ^. A pro vndkvwi right will not 
a£Pord a qualification ^. Neither will a separation of the valu- 
ation by the commissioners be of anjr avail, if the lands have 
not been previously divided in such a way as to make it cer- 
tain to what particular subject the divided valuation applies ^. 
. The Court, in two instances, so far extended this prindple, 
as to decide that all blench holdings were indivisible, where 
the reddendo was incapable of being apportioned, dther from 
the smallness of its amount, as a penny, or from its nature, 
as a rose, or peacock's feather ; and where, consequently, 
distjpct possession could not follow on the separate convey- 
ances^. The latter of these cases was reversed on appeal^; 
and although no appearance was made in the House of Lonb 
for the respondent, yet it is stated by Mr Wight that the 

' Freeholders of Dumfrieashire o. Fei^iuon, 30th July 1746; Falc. 

* In the contested election for the county of Dumbarton in 1724, the 
Committee of Prirll^es and Elections came to the foUovnng resolution, 
which was approved of by the House : ' That it is the opinion nf this com. 
^ joittee, that any conreyance of undivided shares of the superiority of 
' any lands in the shire of Dumbarton, in order to multiply votes, or split 

* an interest in such superiority amongst several persons, with a view to 

* enable them to vote, is contrary to the act of Parliament made in Scot- 
' Umd in 1681, intituled, * Act concerning the Election of Commissioners 
'toshires." Wight, p. 296. 

' Stewart v. PoUok. 6th March 1760, Fac ; Seton o. Shairp, 24th No- 
vember 1808, Fac 

* Gibson «. Anderson, 29th June 1819. See this subject further dis. 
cuMed below, under Valued Rent.^ 

* Ferguson v. Montgomery, March 1780, Wight, p. 234; Ferrier «. 
Erskine, 23d January 1781, Fac. 

* 17th April 1782. 



MOKTIblfiD LANDS. 57 

plfiiinp before the Court were maturely .considered by the 
Noble Lord who moved for the reversals 

Where the valuatioir of lands is the old extent, and these 
lands are not already separately valued in the retour, which 
is the evidence of their extent, they cannot now be divided by 
new retours or otherwise, to the effect of affording more than 
one fredkold qualificaUon on that kind of valuation ; because 
a retour, previous to Hie year 1681, as will be afterwards 
seen, must be produced in evidence ; and because the statute 
16ch Geo. II, c. 11, sect. 8, farth^ enacts, that < no divi- 
' si<» of the old. extent, made since the aforesaid. 16th day of 
' SepCember 1681, or to be made in time coming, by retour, 
^ or any other way, is or shall be sustained as sufficient evi- 
' deuce of the old extent^ If the same lands are, however, 
valued in the cess-books also, then of course this species of 
valuation may be divided, and as many freeholds created as 
the amount admits of*. 

The act 1681 bestows the right of voting on those infeft 
io lands rated at L. 400 of valued rent, * whether kiric- 

* lands now holden of the King, or other lands, holding feu, 

* ward or blench of his Majesty." The meaning of this 
dause became the subject of discussion under the follow- 
ing dreumstanoes. Certain chaplanries had been granted 
hj James VI. to the College of Aberdeen, to be held as mor- 
tified subjects, for the reddendo to the King of . prayers and 
supplications, and had been purchased by certain persons from 
the coU^e, and were now held by tliem, in virtue of a crown 
diarter, for the same reddendo of prayers and supplications, 
after an unsuccessful attempt to obtain an alteration of the 
teoujne to a blench holding. These purchasers presented 
daimB €>£ enrolment, when it was objected that no lands af> 
forded a qualification, unless they ivere held feu, ward or 

■ Wight, p. 236. 

' See the whole [subject of the cUviBion of valuations farther discussed 
imfruj under Valued Bent. 



58 MORTIFIED LANDS. 

Uendi ; siid that this was the meantng of the above clause of 
the act 1681. It was answered, that, by the clause of the act 
quoted, it was not required that chuVch lands should be held 
^ther feu, blench or ward, and that mortified lands were in 
the same situation ; and farther, that the act 16th Geo. II. 
c 11. sect. 9} provided in general terms, that * lands holden 
* of the King or Prince, liable in public burdens for L. 480 
' Scots of valued rent, shall, in all cases, be a suflkient quali- 
^ fioation, whatever be the xAd extent of the said lands, any 
*law or practice to the contrary notwithstanding.** The 
Court repelled the objections to the qualification ^ 

Every one in the feudal series who holds of another, and 
has a vassal under him, is to a greater or less extent control- 
led by his overlord and his vassal, in the exefcise of his right 
of property ; and the question arises. How far this contioul 
extends in regard to the power of alienation ? This point 
may be oonadered, j(r^, in relation to him of whom the feu 
is held, who, in so far as regards the present object of our 
inquiry, is the sovereign; and, seecndh/f in respect to the 
vassal. 

By the original principles of the feudal system, no vassal 
could alienate his feu, without the consent of his superior. 
In r^ard to rights held of subject-superiors, the power of 
refosmg an entry to singular successors continued so late as 
the middle of the last century ; although, by eertmn indirect 
methods, the object was accomplished. Our sovereigns, how- 
ever, eariy waved their privilege of refusing an entry ; and 
every erown^vassal has long been at liberty to dispose of his 
estate, either in whole or in part, vrithout objection on the 
part of the sovereign. The disponee, on applying for an en- 
try, will obtain it on payment of the usual compositioik 
There is, however, another shape in which this pdnt was 
once disputed by a court of freeholders. The charters of the 
crown are granted to heirs and assignees ; and the practice 

^ Dalrymple and others o. Reid, 4th March 1756 ; Fac and Seas. Pap. 



MULTIPI.ICATIOX OF SUPERIORS. 59 

is perfectly common for the crown vassal to assign the pre. 
cept of this charter to Tarious purchasers, either in fee or life- 
rent, who pay no additional composition. This power was 
once called in question, on the ground that the charter con- 
tained one joint reddendo for the whole lands which had been 
separated, and that no splitting ci the right could take place, 
without the consent of the crown. It was answered, diat 
where the superior grants a precept to aseagnees, it is implied 
that the grantee may dispose of the lands in whole or in part ; 
and the superior suftrs no prejudice, for the whole lands, 
«nd every part of the lands continue liable for the whcde red- 
dendo, however split. The objection was accordingly re- 
pelled '. 

The other question, respecting the right of the vassal to 
object to alienations of the superiority, has given rise to more 
diacusnon. 

The general rule of the feudal law is, that a superior may 
alienate his right, provided the condition of the vassal be not 
thus rendered worse *. Hence he may dispose of his whole 
dominium dtrectum to one person, who shall thus come pre- 
cisely into his situation, and shall have the same rights over 
the vassal which his author enjoyed; for the vassal is not 
conceived to be placed in a worse condition by merely ex- 
changing one superior for another. But where the aliena- 
tian is attended with an increase of the number of superiorB, 
the rule wiU be di£Perent. Thus, if the superior should dis- 
pose of his ju8 dominn to be held under himself, he inter- 
poses another person between himself and his vassal, and the 
latter saflers prejudice in this reelect, that he sinks lower in 
the scale of feudal servitude, and his lands become liaUe fiv 
prestations to an additional superior. If the superiority is 
disponed to more than one, although these are not made to 
hold base of their author, inconvenience still- results to the 

^ Campbtll and Gnham «. Muir, 5th Febnuuy 1700 ; Fac. Cot 
* Cnig, tk iL d. 12. sect 35. 



60 MULTIPLICATION OF SUPERIORS. 

vassal, from this mode of multiplying overlords ; because the 
feudal services become exigible by many instead of one. Be- 
fore the ward^holding act, which abolished many of the feu- 
dal services, it was accordingly decided that such a multipli- 
cation of superiors was illegal ^ After the passing. of that 
act, the question was agun stirred, when it .was argued that 
the i-ights of the overlord had been very much curtailed, and 
that the inconvenience resulting to the vassal from alienation 
was rather imaginary than real. The Court, however, still 
thought that the genuine principles of the feudal law wereat 
variance with such a multiplication, and that enough of real 
prejudice still resulted to the vassal to justify the prohibition. 
He would still be liable to claims for feu and non^ntry du- 
ties from a number of superiors, instead of one ; and when 
he required an entry, be would be obliged to seek it from all 
of those from whom he held, in order to prevent the dis. 
agreeable consequences resulting from not having obtained a 
charter from any one of them. Decisions according to these 
principles have been given in cases where the multiplication 
was merely of the liferents of the superiority, the fee remain* 
ing with the granter, and where it was argued that an entry 
from the fiar would supersede the necesaty of going to any of 
the liferenters ^. 

Ii is of no consequence that lands have been once held by 
separate rights from the same or different superiors, if they 
have come afterwards to be included in the same charter. 
They will then be regarded as one feu ; and even separate 
descriptions and reddendos in the charter will not alter the 
case. The charter will have the effect of consolidating die 
rights of superiority, so as to prevent a subsequent separation 
without consent of the vassal ; and this effect can only be 

^ Sir John Maxwell r. Macmillan, 9th June 1741 ; Kilkerran, p. 529 ; 
C. Home, p. 284. 

* Sir John Anstnither v. Earl of Eglinton, July 1780, Wight, p. 299 ; 
Duke of Montrose v. Colquhoun, 31st January 1781 ; Fac 



MULTIPLICATION OF SUPERIORS. 6l 

avoided) by insertiog a special clause of reservation of the sii- 
perior's power to separate the superiorities ^ 

The cases relating to the maltiplication of superiors which 
ha?e been alluded to, were instances of regular actions of re- 
duction or declarator at the instance of the vassal, for having 
the rights of superiority set aside or declared to be illegal ; 
and it is thus perfectly settled that such remedies are com- 
peient to the vassal. But it is also settled that an objec- 
turn of this nature cannot be pleaded in a court of freeholders, 
unkss it can be shewn that decree of reduction has already 
been obtained at the instance of the vassal ; in which case 
the r^ht of the superior is of course at an end. Where the 
▼assal is not one of the objecting freeholders, and where no 
action of reduction has ever been, raised, then it is clearly ^« 
tcriii to them to state such an objection^ and they will not be 
listened to ^ This principle has, however, been carried so 
far, aft to jirevent the vassal himself from founding in the 
court o{ freeholders upon an action of reduction of the supe- 
riority, which he has already raised, but in which he has not 
obtained decree '. In support of this view of the law, it may 
be argued, that the objector, qiia vassal, suffers no incon- 
veniency from the enrolment of the superior in .the mean 
tinie ; that such enrolment is not one of the evils ,which it is 
the object of the law to avert froiki him ; and that his action 
of reduction will sufficiently obviate any prejudice to which 
he may be exposed in the. character of vassal.. When de- 
cree of reduction, however, shall have been obtained^ that 
circumstance will constitute such an alteration of circumstan- 
ces, as will authorise the striking the freeholder off the roU. 
There are ^various ways in which a superior may forfeit 

* Colqulioun e. Duke of Montroae above, p. 60, note; Lainmont «. 
Duke QiArgy)B aod Others, 23d June 1 813. 

' Stevart v. Balrymple, 28th July 1761. 

' SiouiLAWTiev. Hamilton and Campbell, 1st and 17th February 1761. 
ITifllt, Tol. i. p. 231 ; Fac App. 



62 ENTRY SUPPLENDO VICES. 

his righti either entirely or partially ; and the question arises, 
Whether the vassal, who formerly held of a subject«uperior, 
and now, through the forfeiture, holds a! the crown ^ is en- 
titled to the elective privileges of a crown vassal ? This point 
seems to depend upon the extent of the loss of right which 
the superior has suffered. When the forfeiture is total, so 
that he is completely divested, the vassal, upon entering with 
the <arown, is entitled to the elective franchise, so long m he 
continues to hold of the king ; whilst, on the other hand, if 
the loss is only partial, and the superior still retains some of 
hb rights, the vassal is not held to acquire the right of voting, 
by obtaining a charter from the crown. A total forfeiture 
of Uie feu fcMrmerly took place under seve^l circumstances, 
but now occurs more rarely. The case of high treason is still 
an example ; and where the vassal who formeriy held of the 
forfeiting person enters with the crown, he immediately ac- 
quires the elective privilege K It forms no objection to this 
result, that his Majesty retains the power of selling the supe^ 
rioiity to another, because, so long as this is not done^ the 
holder of the subfeu is to all intents and purposes a crown 

vassal ^ 

The act 1474, c. 58, introduced a forfeiture of the ri^t of 
a supmor, when he lay out unentered for forty days, after 
being required by his vassal to complete his titles ; and au- 
thorised the latter to go to the next overlord, and procure an 
entry from him ^mppkndo vices. This forfeiture has been 
interpreted as only partial, and as not extaiding to the fixed 

^ In the cue of BaUenden v. Duke of Aigfk, July 6. 179S, tb« 
statute 1697» c 246, which enacta, that, upon the non-pajment of feu- 
duty ibr two yean, the feu is foxfeited, was held to he still in focce ; 
and the superior was found to have recovered the feu. If a case oecuzred 
where the crown ohtained a rig^t in this way, the yassal of, the for^tiag 
superior would have the right of voting. 

* Carnegie «. Stewart, 13th Febntary 1741 ; Aichies v. Mem. Pari* 
No. 6. 3 



V 



CONVEYANCE OF ' SUPEEIORITY.' 63 

yettdy doties payable bj the vaanl^ The result of this 
mode of interpretation has been, that the forfeiting superior^ 
when a crown Yassal, is held not to lose his elective privi- 
leges, and, consequently, the vassal entering with the king 
docs not gain any such franchise'. 

We have seen that superiority is, as well as property, a di^ 
reel vif^X in lands, and that, in strict .principle, the superior 
is as much, or even more, entitled to be considered as a pro* 
prietor of the estate than the vassal. Hence it is that the 
naiial mode in which superiority is conveyed, is to tranafer 
the lands tfaemsdves nofnsnoliifi, and merely to except in the 
dause of warranctice, the feu^ght which has been granted to 
thevassd. Sasine is then taken in the lands themselves. 
Bat, altlunigh thb is the usual, and certainly the more cor- 
rect, method of constituting a right of superiority, it has been 
doabtad whether a conveyance of the domimum dira^ium, or 
rig^ of superiority nomkuUim of the lands^ and not of the 
lands themselves, and an infeftment in the same terms, by 
ddiwry of earth and stone of the lands, will not also form a 
legal investitnce in the right. This question has of late been 
moeh aptated, and cannot yet be considered as finally set at 



On the one side, we certainly have various decirions which 
tend to support the legality of the less correct i^ode of inves- 
titure. There is an old case reported by Dury, in which the 
report bears, that an infeftment ^pcr exprenum only of the 
* soperiority,^ was held sufilcient as a title to remove tenants, 
who oould show no right to maintain themselves in the lands '; 
and, upon reference to the late abridgment of retours, pub- 
fished by Mr Thomson, we find, that Grierson of Lag, the 

' Enkiae^b. iii. tit. 8. sect. 80. 

* Earl Fife aod Duff v. Sinclair 1780, Wight, p. S05. 

' Laird of Liagg o. his Tenants, 19th November 1624. Durie, p. 149. 



64 CONVEYANCE OF * SUPERIORITY/ 

party infeft in that case, was infeft ^ in superiontaie' of cer- 
tain lands ^ 

ft 

In a late case, which occurred in. the First Division, the 
question was very maturely considered; and the Court, al- 
though not unanimous, decided in favour of this mode of con- 
veyance and infefiment, and sustained a qualification, all the 
title84}f which exhibited to the freeholders, were constituted in 
this form '. 

A still more recent case supports^ to a certain extent, the 
same doctrine '. In this case, the' crown charter and sasine 
were in the common form ; but the disposition which assigned, 
die crown precept, on which the sasine followed, conveyed 
only ^ the auperionty^ of the lands. The infeftment, bow- 
ever, was here expressly ^ in the lands ;"* and the titles were 
held sufficient, by the SeccMid Diviuon of the Court, to pur- 
sue a declarator of non^entry ; and, if such titles are good for 
that purpose, they are of course quite sufficient to a&rd a 
freehold qualification.. 

It deserves also to be noticed, that this method has been 
very extensively followed in practice, . in the constitution of 
fre^old qualifications ; and there can be.no doubt that great 
confusion and inconvenience would result from its illegality 
beii^ established. * * 

On the other hand, this mode of conveyance and investi^- 
ture,'by a conveyance of, and infeftment in, the superiority 
merely, is expi-esdy reprobated by our institutional writes. 
Thus, Lord Stair^says, ^ The superior must be infeft^as well 
' as vassal, and that in the lands or tenement itself, rifiy^^ 
^ without mention of the superiority, which foUoweth upooi 
^ the concession of the fee in tenantry, though sometimes, 

* through the ignorance of writers, infeftments bear expressly 

* to be * of the superiority only ;"' and Mr Erskine^ expresses 

^ Dumtrieti, No. 133. 

' Lord A* Hamilton v. Bogle, 23d February 1819; Fac. 
' Mackenzie t>. Mackenzie, 14 th December 1828. 
* B. ii. tit. 4. sect. 1. ^ B. ii. t. 3. sect. 10. ^ 

3 



OF THE INFEFTMENT. 65 

pfiectaely the same opinioD. Such a title was, in a case or re- 
cent date, found insufficient, by the Second Division of the 
Court, to be the foundation of a declarator of non-entry ^. 
In the latest case on the subject, the whole question under- 
went a very full discussion in the Second Division ; but ano- 
ther point in the case superseded the necesaty of determining 
the vali^ty of the conveyance and infeftment in the supefioii- 
ty ; and the Court declared, that, had it been necessary to 
decide this latter question, they would have taken the opi- 
nion of the Judges of the First IMvision before coming to a 
final determinaticHi '. 

Under all these drcumstances, it certainly cannot be said 
that the point is yet set at rest Whatever the result may be, 
it seems plain that it will be expedient to establish one imi* 
form rule, which will validate or annul a right of this kind 
far aU purposes. It would lead to great confusion, if such a 
right might be good to one efPect, and bad to another. 



SSCTIOH %. 

Of the In/e/imeni of (he Ckamant. 

Although the act 1681 requires that the claimant shall 
be infeft, it does not point out any time which must elapse 
between the infeftment and the enrolment, or the exercise of 
the right of voting. The statute ISth Anne, c. 6. sect 1, on 
the narrative^ that conveyances in trust had been made fcf the 
creaUng of votes, contrary to the true intent of the laws, 
enacts, that no conveyance, wheiecm infeftment is not taken, 
and sasine rpgistered, one year before the teste of the writs 
for calling a new parliament, or before the date of the writ 

^ Pnk V. Robertson, leth Maj 1816; Ftc. 
* Macqueen v. Nsime, 2Sd Januarj 1884. 



66 OF THB IMFEFTM£NT. 

far an dectioi^ if tbat.deetidn shall occur dufiag the ecmU- 
nutede of Parliament^ shall entitle the person ' to vote or to 

< bedceted at thai eketidn.' And thfe act 16th Gea IL e. 
1 1. aeet 10^ ptovides^ * that no jpNrchsuKr or singular iittebea- 

< aBr:8hall be iemt^HeA tUl he be publkkly ittfeoft^ and his 

* BUMi. r^^tstered^ or ehaKer of ecmfimmuon be csxpede^ 

* wiiert oonfiltaation 19 nlteessary^ one year before the enroU 

< ment:^ It' will hfe dbrfenred, thai there b a diftretice in the 
phraseKribgy of therdauifaaof these two acts^ the former pro- 
vidingy thatv' unleHs the year be dapsed before tlie writ for the 
new Parliament, the person shall not be entitled to ve^, at be 
deeiedi and the Utter^ that unless a year shall have ezpiied 
beftpB •emUment^ be shtdl dot be entided to be enroiM. This 
differenoe gaVe rise to a question id a case, where a claim to 
be ehrdl^ was made ait on eWctbh meeting, by a person who 
had Jmen more than it year iiifeft, bat whbse i u fef tawgnt was 
not a year pfCfvioUs totbe writ fi>r calling Parliam^t. The 
freeholders having kept him off the roll, he pleaded, in a 
complaint, that, as posteriora derogant prioribuSj he was en- 
titled, under the act 16th Gea II., both to be enrolled, and 
to exercise the privilege of voting, which is omferred by en- 
rolment The olgeetitig fr^olders maintilhied, that, by the 
act of Anne, he could have no right to vote, although he 
might have a right to be enrolled, i^hith they were willing to 
have allowed aficef' the election was over, and that there waa 
nothing incompatible in the two dituses« The CouA repelled 
the dbjtettott to the emfdtlient ^. The same objtetibn was 
tigkitk Repelled in a subtoqUent caae '; and, id a Committee of 
the Hou^ of Oolnmoos on this case, the right both to vole, 
and to be elected^ wte sustained f 

It is thereftm ctlnsidered as settied, that the only li- 

^ Buchanan 9, Ciinninghame, 17th January 17&6 ; Fac ; Wi^t» p. 218* 
* Gordon v.Dalsiel, December 1780; Wight, p. 218. 
» Wight, p. 214. 

2 



YEAB MUST HAVE EXPIRED. 6? 

nataUon io poiiil of time is, that the claknaitt most have been 
iiiftft, and his sanne roistered, a year before the enroiment ; 
and that, if tbenemoUed, and not othenrtBe disqualified, he 
is entitled to the privileges of voting, aiid of bong decled. 

Bodi the acts which have been quoted require that the sa» 
sine shall have been registered ; and it is settled, as will be 
immediately seen, that the year is reckoned from the date of 
registration, t . e. from the dale when the sasme, on bdng pre- 
sented for registration, is marked in the nunute-book which is 
kept Ibr the purpose of marking the time oi the presentment 
(tf sasioss fur registration ^ 

The year must have expired at the time when the claim is 
presented to the meeting of freeholders. In one case, tlie 
sasine had been recorded at 6 oVlock of the afternoon of Sep. 
tember 15. 1779 ; a meeting of freeholders had been held on 
14di September 1760, and oontinucd past midnight, and the 
chum had been presented at S oVlock of the morning of the 
15th. In these circumstances, the Court held that the year 
hadezpired according to the maxim, Diesinceptus pro compkio 
htAitur^. 

The preceding rulesareapplicable to the case of the titles of 
the claimant having been made up by infeftment, on a charter 
of resignation. Whoi titles have been made up by oonfirma* 
tion, the statute of Geo. 11.^ enacts, that the charter of oonfir~ 
nwtion must have been expede one year before enrolmeuL 
The reason of this proviakm is^ that, in this mode of investi- 
ture, the sasine, which is taken on the disposition from the 
last proprietor, doss not beoome a crown-holding, until it ia 
confirmed fay the crown charter. The charter is not oonsi* 
dered complete until it is sealed, and the year is therefore to 
be ooonted from that date ^. 

< 

^ See the Subject of Beguintion tf0«. 

* Telfien o. Fernet, January 1781; Wight, p. 220 ; FoU Diet. iu. 423. 
> leUiGeo. II. c. ii. aect. 10. « Wight, p. 222. 

k2 



68 of: the infeftment. 

As the statutes require that the claimant shall be in- 
feft« it is of course necessary that the cereflioBy of infeftment 
shall have been carried on, according to the forms prescribed 
by law, aiid that the instrument of sanne produced in evi- 
denoe of the infeftment shall possess all the legal solemmties. 
It will, therefore, be proper to enter into a short explanation 
of the rules regulating the taking of infeftments^ and the 
drawing out instruments of sasine. 

As sasine proceeds on a warrant or precept, contained in 
the charter or dispositicm conveying the lands, it will prove a 
fiitol objection to the infeftment, if it shall appear that the 
precept had been exhausted before the date of the sasine on 
which the claim is made. This is the case when a previous* 
valid infeftment has been taken, for a precept authorises only 
<me act of delivery of heritable possession, provided that act 
of delivery has been executed according to law, and is evi* 
denced by a valid instrument of sasine. Hence, if a sanne^ 
liable to no l^al objection, and duly registered, and prior in 
date to that on which the claim is made, or if an exttact of 
such sasine is produced, the second infeftment must be held 
to be null and void, as having been taken without a warrant ; 
and the qualification, as set forth in the claim, cannot be sus- 
tained ^ If the fir^ sasine labours under any essential nul- 
lity, it follows that the precept is not exhausted, and that the 
second infeftment will be good. Questions,' however, of much 
nicely may occur as to the extent to whidi a sasine is vitiated 
by errors, either in the instrument itself, or in the rostra- 
tionr, and as to the efiect which such vitiation will have in 
saving the precept fiom exhaustion. The act 1617, c 16, 
provides, that if sasines are not dufy registered within sixty 
days from their date, they shall bear no faith in judgment 
against third parties, who have acquired perfect rights to the 
subjects, without prejudice to using them against the grant- 

^ Carnegie v. Kobertson Scott, 26th Febmarj 1796; Fac. tvprs, p. 34^ 



WHETHER PRECEPT EXHAUSTED. 69 

en aod their heirs ; and the act 1696, c 16, declares, that no 
saane shall ^ be of any force or effect against any but the 
* granters and their heirs, unless it be duly booked and insert 
' in the register."* Founding on the terms of the act 1617, 
lawyers of high authority have given it as their opinion, that 
if saanea are not thus registered, they are not null and void, 
although they cannot be used against third parties'. On the 
other hand, it has been laid down from the bench, that the 
true view of the subject is, that a sasine not recorded is null 
and vind, although certain parties are not entitled to [Jead 
that nullity ^. In one case, the party in whose favour a sa^ 
sine had been taken on the precept in a dispoation, had been 
called in the record of the sa«ne Alexander Johnstone, in- 
stead of Alexander Houston, and a charter of confirmation 
had been expede ; but the error having been discovered, the 
procuratory of resignation in the disposition was executed, a 
charter of resignation expede, and new infeftment taken in 
the person of an asngnee to the precept in that charter, who 
claimed enrolment on the title thus made up by resignation. 
The Court held, that the charter of confirmation, as confirm- 
ing a null samne, had no effect in divesting the disponer ; 
that, consequently, it was competent to execute the procura- 
tory ; and that the title made up by resignation was perfectly 
regular^. The import of this case* therefore is, that a pre- 
cept is not exhausted by a saaine not recorded or unduly, re- 
gistered ; and that it is competent to take infeftment again 

* Erskine, Ik ii tit. 3. sect. 40. and others. * 

' See Lord Meadoivbank*8 Speech in Kibble v. Shaw SUwartandSpein, 
16th June 1814; Fac See also Stewart^s Answers to Dhrleton, p. 27^. 

' Kibble tup. Lord Meadowbank stated, as mentioned above, that be 
thought the proper view of the case was, that an unregistered sasine is null 
and void, although certain parties are not entitled to plead the nullity ; 
and that, at all events, it constituted no real right in a question with the 
cUimant. Two of the other judg^ said they acquiesced in Lord Meadow- 
bank's opinion on the merits ; and the Lord Justice Clerk said, ' I am 
^ of opnlon with all your Lordships, that the precept was not exhausted 
*• by what took place in this case.* See the Faculty Keporl. 



70 OF THK IKFEFTMENT. 

upon it. The questioD was again agitated in' a aubaequeot 
case, in which the sasine had not been recorded till the 67ch 
day. Lord Grillies decided, that a new infeftment ^inigbt foe 
taken on the precept ; and the Inner^House, by one judg- 
meatf adhered to thia interlocutor. On a reclmming petition, 
in consequence of aome doubts thrown out by Lord Baigray, a 
hearing in preeence was ordered, and the case was afterwarde 
oompromiied ^ In these circumstances, it eannot be siud that 
the question is finally at reat 

Tlie general rule is, that an instrument of sasine must give 
afiiU account of the circumstances which passed at the taking 
of infeftment ; because, by that means only can it be known 
whether every diing was done according to law. The landB 
on which the sasine was taken ou^t to be qpedaHy mention- 
ed ; and, in considrnqg this part of the instrument, it i» to be 
remembered, that, where there is more than one pared of 
lands, and these lie separate ttam one another, infeftment 
should be given on the kmds of each parcel. In a case where 
a sasine bore delivery of infeftment of two enly of three par- 
eels of lands set forth in a dUun of enrolment, although, in 
the last part of the sasine, it wtm stated generafiy,' in common 
form, that these things were dene on all the three suljects, an 
objection, founded on the omission, was sustained by the 
Court'. In this case, two of the pareds had been mentlmi- 
ed, and the third had been omitted ; but, in another case, 
where there were several parcds, and it was stated genendly, 
that sasine had been given of ^ all and each of the before men- 
< tioned lands,^ it was presumed, that this had been done 
on each of the lands separately ; and the sasfne was sustained'. 

1 Baxter V. Watson, 16th May 1818. Noticed by Mr Bell, (Comipen- 
tarles, last edition, vol. i. p. G970i who expreasea an opinion, that a saaine 
not registered does not exhaust the precept 

< Macleod r. Ross and Others, 18th February 1768 ; Wight, p. 283. ; 

FoL Diet iu. 424. 

"Brodie v. Gordon, August 1773 ; Bell, p. 254. 



ERBOBS.IN TH£ IKfiCBUM£NT. 91 

Whefe a preoept of aaaiiie cnntftiiiB w^aat fqe infeftiiig 
▼arious disponees in different pafiods oi lands, it is sufficjaut 
that the instrument of sasine of each duponee shall oontain 
as mudi of the precept aigroased ink as relates to the lands 
in which that particular disponee is infeft ^ 

An instrument of saeme mentions the precise hour at which 
infeftment has been taken; because, in a competiti<Ni of 
rights, questions may oecur as to priority of infeftment. In 
election questions, however, some latitude has been allowed in 
tins particular. In a case where the instrument ci sasine 
bore infeftment to have taken place between five and six oVioek 
of the Slst June, without specifying whether this was on the 
morning or evening, the Court repelled an objection stated 
to enrolment, founded on that omisnon, holding, that, except 
in the case of a competiticHi, it was unnecessaiy to be move 
particular, unless to shew that sasine had not been given un- 
der cloud of liight, which could not have been the case in this 
instance, whether the infeftment had been taken in the morn- 
ing or evening'. It does not, however, appear necessarily 
to import a nullity in a sasine, that it has been taken under 
doud of night. In an old case, a saoBe taken in the dark 
was sustained, ' nothing of latency or fraud being qualified' ;^ 
and, in a later case, where a sasine was taken between seven 
and eight on Slst August, and the partis were at issue as to 
the degree of li^t, the Court sustained the sasine 1 In 
practice, however, sasines are taken before sunset. 

Where a person is infeft on the jnreoept in a crown-charter, 
to whidi he has right by assignation, the instrument of sasine, 
in the ordinary case, bears, that the deed of disposition and 
assignation was exhibited and delivered, along with the char- 
ter, by the procurator to the person officiating as bailie for 

^ Don «L Waldie, 4th February 1614 ; Fac 

* Dennkton v. Spiers, 16th Noyember 1824; Shaw. 
' Amot «. Turner, 19th November 1679 ; Stair. 

* DougUa, &c o. Elphinatone, 17B8 ; Bell, p. 858. 



72 OF THE IMF£FTM£KT. 

the drown, and by the latter to the notary, who then read 
over and explained to the witnesses the said charter and dis- 
position. In a case where it appears that the instrument of 
saaine bore merdy, that the disposition and assignation had 
beoi exhibited, but did not state that it had been delivered 
and r^ over, an objection founded on that omission was re- 
pelled'. 

An instrument of sasine, according to its ordinary style, 
bears, that heritable state and sasine is given to the partgf 
vffflfi nominatim^ by delivery of the symbol to his pro^ 
curator. In some instances, a less correct style has been fol- 
lowed, where the sasine has borne, that heritable possession 
was given to the procurator instead of the party himself. 
Such saaines have, however, been held valid. In one case, 
the precept of sasine directed infef tment to be given to Adam 
Toshack and William Ireland, the principal parties, by de* 
livery of earth and stone to the said parties, or iheir procura- 
tor. The instrument bore, that Robert Glass compeared as 
procurator, and that the bailie ^ gave and delivered to the 
*' said Reberi Ghtas heritable stale,^ &c. ^ and that by deliver- 

* ing to the said Robert Glass, as procurator aforesaid, of 

* earth and stone/ &c. ; and an objection, that saaine had 
been given neither to the parties nor to their procurator, but 
to Robert Glass simply, was repelled \ In another instance, 
the precept ordered sasine to be given ^ Gulidmo Macgilli- 

* vray in vitali-redditu, et Simoni Macgillivray in feodo, val 

* eorum actornato.^ The instrument stated, that Hugo Mac- 
dougal appeared ^ tanquam actornatus," and that the sheriff 
gave ^pr^^iUo Hugoni Macdougal statum et sasinam,^ &c. * per 

< traditionem terrse/ &c * in manibus diet actornati, pro et in 

< manibus diet. Gulielmi MacgiUivray,' &c ; and an objection, 
that the sasine was disconform to the precept, was repelled '. 

^ Scot and Kerr o. Dalrymple, 17th January 1781 ; Fac. 

* Kirkham v. Campbell, 2l9t May 1822 ; Shaw. 

^ Macgillivray v. Campbell, 9th December 1824 ; Shaw. 



ERRORS IK tH£ INSTRUMENT. 7S 

Enfon in ingtnimeiits of saaine have occurred under a vbt 
liety of other forms ; and the general tendency of the Court 
has certainly been to sustain the sasineB, notwithstanding 
such errors, where they have been of sudi a nature that they 
could be corrected from other parts of the writing, and from 
the general import of the whole. Thus, in an dd case, the 
same person appeared, from the clause of tradition, to have 
acted both as bailie and attorney ; but, from the first part of 
the saain^ it was clear that there was a distinct attorney ; and 
the Court inclined to sustain the sasine, and ordoed parties 
to be heard on a farther point in the case ^ 

In a later case, the instrument shewed, that Alexander Li- 
vingston iqppeared as bailie, and John Bryce as procurator ; 
but, in the clause of delivery, infeftment was given, not to 
Jdin Bryce, but to John Bum. To this objecticm it was 
answered, that it arose from a mistake, and was corrected in 
o(ther parts of the samne. The Court accordingly sustained 
the sasine', and the judgment was affirmed on appeal. 

In another case, two persons were mentioned in the b^in- 
ning of the sasine, the one as attorney, the other as sheriff; 
but, in the clause of delivery, the names of those persons were 
reversed, so that it appeared as if the attorney had given de- 
livery to the sheriff. The Court, however, sustained the sa- 
sine ; the majority holding this to be a mere blunder, but a 
considerable minority r^arding it as a nullity \ In a still 
later case,* a daim for eniolmoit was made on a charter, 
sealed S4th July 18S2, a disposition, bearing date 19th Au- 
gust 1822, and sasine, bearing date 7th September 1822. 
The instrument of sasine, after the usual words of style, and 
narrating the crown-charter, proceeded thus : ^ Ac etiam prsd- 

* Hilton V. Cheynes, 24th Febniaiy 1076 ; Dirleton. 

'Livingston v. Lord Napier, 3d March 1762; Sup. to Mor. vol. v. 
p. 587* 

' Henderson v. Dalrjmple, 1776 ; Sup. to Moriaon, voL ▼. p. iMW, and 
Hailea' Notes. 



74 OF THE INF^PTMSNT. . 

* dictiis Mtomfitiia.bdbens, ^ ia suis mmilms t^nm^ diqsosi- 

< dooem de dal» (imma nono die raepsis Augvsliy' be JbiH 
aniltBig the year in which the dkpmtion was d^ted. It w^ 
objected that the flaaane was .null by aiuJogy, from the «ot 
169S, c 35, which requires, that, in instnimeDta flf Baaine 
taken after the death of the granter oc grantee of the precqpt, 
the titles of the party to whom in&ftnieDt i& granted shall be 
deduced, which could not be said to be done if the date of the 
disposition was not set forth ; and that there was x^ endenoe 
that the disposition mentioned in the claim waa the aame willi 
that motioned in the sasine. The Court, however, held 
them to be su£Bkaently identified, and sustained the title of 
the claimant '. In a yery recent instanee, the e6Bact of oBf- 
tain enors in mi instrument of sasine, underwent a very. fiiU 
diBcuissbn before both Divisions of the Courts met tp^^^er* A 
daim of admission to the roll of Banffshire was m^de at-lbe 
election meeting in the year 1886, founded, Ist,. on. a charter 
of resignation in favour of Theodore Morison, Esq. ;. Sd, dsi- 
poflition of part of the lands in die crown-charter to Alasan- 
der Gordon, Esq. (the claimant) in liferent, and to Tbeodore 
Morison, and his heirs and assignees, in fiee ; and, 8d, on.aA 
instrument of sasine in the claimant's favour. The.inatru- 
ment commenced in usual form, bearing date 7th May 18S6, 

* r^nique serenissimi domkii nostri Georgii QuarH,^ .&6. 

< anno sexto r and stated, that the attorney ^qaeared ^ habeas, 
' et in manibus suis tenens, quandam cartam r^agnatiODis 

< sub sigillo per Unionis tractatum cuBtndiend. et in Sootia 

* vice et loco magni sigilli ejusdem utend. ordinat., de data i4 

* ir^a script J et prssceptum sasinsB subinsertum in.seiKm- 

< tinen. ; per quam cartam dict. S. D. N. Rsx, cum consensu 

< Baronum sui Scaccarii in Scotia, dedit, ccmcessit, et diqpo- 

* suit,' &c As the only king mentioned before the expres- 
sions dict. S' D. N. Rexy was Greorge IV., it was stated in ob- 
jcetian to this sasine, that it proceeded on acharterof George 

^ Hamilton v. Hamilton, 24th January 1824 ; Fac and Shaw. 



ERROBj^ IK ISHE IN8TiRUM£NT. 75 

IV.» vhoreas the charter produced was qne of Cieoi^ III. 
The nftnaneiit also bore, that the aUoniey hdd ip.bfts hand 
a dmpntUJma in £Enrour ^ dicti Aleiumdri Qofd<Ni> in vitali^re- 
'ditu, pro yitali^redku suo solunimodo, ei hccr^dmn amg- 
' mxtorumque quorumciiinqu/R dieH Theodairi Morimmj sui ip- 
* WIS, infeodoy^ &c. Itfarther bore, that an asognation had 
been granted of the uaexecuted precept in the charter, that, 
by Tvtne * £et praeoepti sasinse, diet. Alexander Geidon tin 
^ Titsh-reditu, et diet. Theodorus McHison, ejusque prsediet 
' in feodo, promptius infeodarentur,' &c. The description of 
the disposition, as contained in the instrument, gave rise to 
tbeiSuther objection, that whilst, by the disposition produced, 
(he lands were conveyed to Mr Grordon in liferent, and to 
lieodore M&rison^ and hu heirs and assignees^ in fie^; dioae 
Inds were, by die disposition, as recited in tlie instnimeBt 
of SBsine, oonveyed to Mr Gordon in liferent, and toM^ AWfv 
and auigneei rfMr Morison injee. These objections were, 
however, repelled by a najority of seven judges to five. The 
grounds of that judgment, as expressed by the Lord Justice^ 
Clerk, with respect to the first objection, were, that the char- 
ter meniicned in the instrum^it was sufficiently ddentSBed 
wkh that produced, fay its date, sealing, and general naituve ; 
and that, in the dedaions founded on \ — allof which, however, 
faii Lordsh^ did not approve of,* — a rdaxation from strict ac- 
eanej bad been admitted. With respect to the second ob- 
jedion, fab Lordship hdd, that, as the question related only 
to Ae claim of the ^rentar, and as, in the subsequent part 
of <he mstniment, the titie,- even with respect to the fiar, was 
correctly given, the objection ought to be repefled*. 

In a very late case, a queatimi occurred as to the effect of 
aa ensure, in an mstrument of sasine, in the name of one of 



* Amongst tbc cases founded on in support of the aasine, besides those 
of Hilton, of fietidsTsony and of Hamilton, mentioned above^ were those 
«r Baehanan «. Fisher, 7th July 1434 ; .A4un, ISth June laiO; Dimam, 
Uth Pebnttury 1706; Scott, 17th January 1761 ; Boyd, 3Sd February 1893. 

* Gordon v. Lord Fife, 9th March 1887 ; Shaw and Fac. 



76 OF THE INFEFTMENT. 

the subjects on which enrolment was claimed. In the charter 
produced, the lands claimed on were described as being lot 
first of certain subjects, and as consisting of various lands, 
and, amongst others, of those of Coblehouse. In the instru- 
ment of saane infeftment was said to be given of this lot ; and 
various lands constituting it were enumerated, and, amongst 
others, those of Cdbkhouae ; but, in all the material parts of 
the instrument, the word ^ house,* forming part of the com- 
pound * Coblehouse,* was written on an erasure. These era- 
sures the Court held to vitiate the sasine, and to render it null 
and void ^. 



To obviate the necessity of taking infeftment on every 
parate parcel of lands, or other subject contained in a charter, 
a clause of union is often introduced, by which it is declared 
that sasine taken at one place, and by delivery of one symbol, 
shaU be sufficient for the whole. The place pomted out is 
generally the manor-house, but if no spot be specified in the 
clause of union, the sasine may be taken any where on the 
lands ^. 

Various questions have occurred as to the effect produced 
on such a clause of union, by an alienation of a part of the 
subject. In a case where a person claimed on several discon- 
tiguous parcels of lands conveyed to him, constituting a part 
of the lands contained in a charter from the crown, in favour 
of the Earl of Panmure, with a clause of union, declaring 
sasine taken ^ on any part of the said lands * to be sufficient 
* for the whole lands,' or * any part of the same,* and where 
the claimant had not taken sasine on the several parcels^ com- 
posing the qualification, but at one part only for the whde, the 
Court of Session held, that the effisct of the clause of dispen:- 

1 Enkine, b. u. tit. 3. sect 46. 

* Rose Innes o. Lord Fife, 10th March 1827 ; Shaw and Fac. The 
Committee ou the Baii£P election, however, after this judgmoit, sustained 
the vote on this sasine, having, it is understood, led evidence as to the&ct 
that sasine was given of the lands of Coblehouse. 



CLAUSE OF. UNION. 77 

saUon was destroyed by the alienation ^ ; but their judgment 
was rereraed in the House of Lords '. In another case, where 
inftfbnent had been taken, in virtue of a clause of union, on 
hnds which were not conveyed to the person infeft, but to 
another individual, the House of Lords ^ again reversed a 
decision of the Court of Session \ which had found the in- 
feftment invalid. In a subsequent instance, where a clause 
of dispensation provided, ^ quod unica sasina per praefatum 
^ 6. Home, gusque praed., nunc et in omni* tempore,^ on any 
part of the grounds, should be sufficient ^ pro integris prae- 
« djctis terris aliisque ;'* and where several parcels of these 
lands bad been conveyed to a disponee, who had taken infeft- 
oKot on one of these parcels for the wh<rfe, it was objected to 
die qualification of this di&|x>nee, that the clause m^ht allow 
one total infefhnent for the whole lands in the charter, in fa- 
vour of George Home himself, or of any one to whom he mi^t 
convey the lands, but could not authorise twenty different in- 
feftments on as many parts of the lands. The infeftment, 
however, was sustained, and a claimant upon it was ordered 
to be enrolled ^. 

In terms cf this last mentioned case, it may be laid down, 
ttiat, after the alienation of certain parcels of the lands contain- 
ed in a charter, with a clause impowering sasine to be taken 
on any part of the lands for the whole,, the disponee of those 
paicek is entitled, under that clause, notwithstanding the ali- 
enation, to take infeftment on any one of these parcds for the 
whole of them ; and this rule will hold, although the clause 
should authorise the infeftment to be taken simplyjf&r the whole 
Imidij and not specifically for the whole lands, and every part 
of them. 

'Skene and Hunter v. Og^lrr, 19th Jnnuary 1768; Wight, p. 224; 
FoL Diet. ill. 434. 

* 4lh Karcb 1198. 

' &th March 1770, Dundaa v. Freeholders of linlithgovr. 

* 19th Decemher 1767 ; Wight, p. 225 ; FoL IKct. ill 424. 
^ Heron v. Syme, 14th February 1771 ; Fac* 



78 OF THE INFEFTMENT. 

In like nianiiM*, where the clause appoints sastne to be 
taketi at the manor-place, or at a fortalioe, its effect is not de^ 
trajed^ by the idienation of a part of the lands, with respect 
to thai/ part. Clauses of that description have given rise to 
asnie questioos relative to the effect of inconsistendee between 
different parts of the instrument of sasine, or between the in- 
strument and the preoept of sasine. Thus, where the instru- 
ment bore diat sasine was given» ^ by delivery of eardi and 
* stone of the ground of the said lands ;** and that ^ these 
^ dnngs were done on the ground of the said lands ' at the 
manor-place, in virtue of a clause of dispensation, it was ob- 
jected^ that the itianor-house was not situated on the bnids 
disponed, and that infeftment could not therefore have been 
givenoathe ground of the said lands; and that earth and stone 
of the ground at the manor-house should have been used ; but 
the Court held that the infefitment was quite in accordance 
with the ordhiary clauses of dispensation in barony charters ^. 
In another case, in whidi the precept of sasine ordered infeft- 
ment to be taken on the lands disponed, without menti<»ing 
the fortalice^ at which a clause of union in the charter direct- 
ed sasine to be taken, an objection, that the instrument of 
saane^ which stated infeftment to have been delivered at the 
fiNrtalioe, was disoonfbrm to the precept, was repdkd '. 



With respect to the solemnities whkh are requisite to 
der an instrument of sasine a probative document, the law has 
varied considersUy at different times ; and cannot be said to 
be even now in all respects completely fixed ; although cer- 
tain rules as to the authentication of sasines are weU known 
in practice. By the ancient custom instruments of sniini' 
were extended on one sheet of parchment ; but by act 1686, 
c. 17, permission was given to write them bookwise^ on con- 
dition of ^ the attestation of the nottar condescending upte 

^ Denniston v. Campbell, 7th Julj 1834 ; Shair and Fac. 
* Dunbar o. Urquhart, 23d FebMary 1774 ; Bell, p. 956. 



SOLEMNITIES OF THE INSTRUMENT. 79 

( the number of the leafes of the book, and each leaf being 

* signed by the nottar and witnesses to the giving of the sa^ 

* sine.* A subsequent statute 1696, c. 15, authorises < eon* 
' tracts, decreets, dispositiotis, extracts, transumpts, and 
' other securities ;^ which it had been the custom to write 
on sheets pasted together, to be henceforth written book- 
wise, ^ providing that if they be written bookways, eveiy 

* page be marked by the number, Ist, Sd, &c. and signed, 

* as the margines were before, and that the end of the 

* last piige make mention how many pages are therein eon- 

* tained, in which page only witnesses are to sign, in writs 
^ and securities, where witnesses are required by law."* There 
is little doubt, that this last mentioned act never was intended 
to have dny refet^nce to sasines. It does not allude to the 
preceding statute 1686, and never mentions sasines ; and that 
specdee of instrument never had been written on sheets pasted 
together^ at least when (lowing from the Crown ^ The 
Court of Session, however, appear to have taken up the 
ideiL, Aat the act 1696 was applicable to sasines as well as 
other deeds ; and, accordingly, an act of sederunt was pas- 
sed OB the 17th January 1756, proceeding on the narrative, that 
some of the regulations of the act 1696 had been neglected 
ill r^ard to sasines, and ordaining that for the future all in- 
strmnents of sasine written bookwise, shall ' have every page 

* marked by the number tst, 2d, 8d ; and that the notary ^s 
^ doquet subjoined to the sasine shaU mention the number of 

* pages of which the sasine consists^ with certification that all 
saaiiies taken ' contrary to the directions of the foresaid act 
' 1696, and of this act, shall be void and null.'' Yet, in sub- 
sequent cases, the Court has held that the act 1696 has no re« 
ladon to samnes' ; and the consequence of this variation of opi- 
nion} and of the practice difPering at different times, has been, 
that the law, as to the requisite solemnities, has been unsettled, 

> Enkine b. iiL tit. 2. feet. IS. 

* Carnegie v. Sobertaon Scott, 26th February 1796 ; Fac. 



80 OF THE INFEFTMENT. 

and sdU in some measure remains so. We shall endeavour 
to give such rules in regard to these solemnities as appear to 
be best recognised. 

The statute 1686, which expressly relates to sasines, re- 
quires that the notary shall mention in his doquet the num- 
ba: of leaves of the instrument. The object of this rule is of 
course to prevent the subsequent interpolation of leaves. 
This r^ulation, however, was neglected in practice ^ ; and the 
Court, influenced by that consideration, repelled an objection 
founded on this omission in several instances, prior to the act 
of sederunt 1756 ' ; although in one of these cases \ they had 
sustained the objection, until a proof of the practice was taken. 
The act of sederunt 1766 provided that the notary should 
mention the number of pages ; and although it proceeds 
on an erroneous narrative, as already noticed, yet, in effect the 
provision is nearly the same with that of the act 1686 ; and 
the practice is now universally conformable to that provision. 
There can be no doubt, that, to mention the number of leaves 
or pages, would now be regarded as an essential requisite, un- 
der the act 1686, the act of sederunt 1756, and the exis&ig 
practice. There is, however, an exception to this rule in the 
case of an instrument of sasine, written on a single sheet 
of parchment, although folded so as to comprehend four 
pages. Such a document is understood to be in the same 
situation with the sasine of old, written on a single sheet ; 
there being no risk of interpolation of leaves ; and, according- 
ly, in a recent case, the objection was repdled, that the no- 
tary had not mentioned in his doquet the number of pages. 

^ Bell, p. 269. 

« Duke of Roxburgh v. Hall, 4tli June, and 17th July 1741; Kilk.— Max- 

well, 6th January 1745 ; Elch Clark and Waddell, 7th February 1742 ; 

Kilk. There is also a similar decision, after the act of sederunt 17B6 ? 

Madean v. Duke of Argyle, ad July 1777, Sup. to Mor. roL v. p. 600 ; 

but it reUted to a sasine taken in 1702. 

' Duke of Roxburgh tupra, 

:i 



SOLEMNITIES OF THE INSTRUMENT. 81 

of a mame, wiiiten on three pages of a single sheet of parch- 
ment '. The same rule was applied, even where the doquet 
stated, contrary to the fact, that the sasine was written on 
* this and the two preceding pages,^ when in truth the sasine 
was extended on the fiice ot a single page '. 

The statute 1686 requires that the notary shall sign each 
kttf of the instrument of sasine ; and this solemnity is indis* 
peosaUe. In practice the notary signs each page of the in* 
strument, but this is not the provision of the statute 1686 ; nei- 
ther does the act 1696 nor the act of sederunt 1756 say 
any thing as to the signature of a notary. Accordingly, in a 
case where the notary had signed each leaf only, the sasine 

was held to be eiFectual ^ 

« 

A farther provision of the act 1686 is, that the witnesses 
shall agn each leaf of the sasine. When the idea, however, 
had been taken up, that the statute 1696, which directs wit- 
nesses to agn the last page only of deeds, applied to sasines, 
the Court in several instances repelled objections to sasines, 
that every page had not been signed by the witnesses *; and 
in the report of one of these cases decided in 1762, it is 
stated, that, on a search into the record, it had been found that, 
since 1696, the bulk of the sasines are only agned by the 
witnesses on the last page. The practice has now, however, 
completely changed, and has gone beyond the provision of the 
statute 1 686, it being now universal for the witnesses to sign 
every page in conjunction with the notary ; and even while 

^ Kiiklisoi 9. Ciunpbell, 2l8t May 1822 ; Shaw. 

* Morison o. Ramaaj, 16th December 1826 ; Shaw, Fac. 

' Carnegie c Robertson Scott, Sup, See the notes on this case already 
quoted p. 33, firom the Session Papers of Lord President CampbelL 

* Findkter v. Boyne, June 1718, FoL Diet, it 544 ;" Buchan «. Ou£^ 
Jamnry 172&, •&; Maxwell, 5th January 1745, Elch. M. P.; Duke of 
Hamilton v. Dou|^aa, 9th December 1782 ; Maclean v. Duke of Axgyle, 
ad July 1777, Sop. to Mor. vol. v. p. 600, relating to a saaine taken in 
1702. 



82 OF THE INF£FTM£NT. 

thepvactiee was diffenent, one. of the decisions just quoted 
was .reversed in the House of. Lords ^ ; although there seems 
to he doubt afr to the precise ground on which the judgment 
went^ In the whole drcomstances, it is likely that the act 
1686 will at present be oonndered as the regulating authority on 
thb point, as on (hat regarding the signature of the notary ; 
and that whilst it will not be hdd esseniiai that the witnesses 
dioijdd sign every page, it will be reckoned indispensable 
that they should at least adhibit theit signature to each fa^ 
The act of sederunt 1756 directs that each page of the 
sasine ikhall be numbered, ^r^, Moondy ihirdi &c There i^ 
however, no sueh regulation in the act of Parliament 1686 ; 
and as the act of sederunt has now been held by the Court 
itself ta have proceeded on erroneous grounds, it probably 
will not be considered as bmding on this point In one case» 
indeed, where the first page had not been marked) the Court 
xepeUsd an objection founded on that circumstance '. It may 
be observed, that, where the doqoet states the number of leaves 
or pages of- the sasine, which it is now essential that it shall, 
the accidental omisnon to mark ooe, (X even more^ of the 
pages, cannot be of much consequence, as all idea ot mterpo^ 
lation is excluded. 

The act 1681, c. 6, require that, in all instruments of sa- 
sine, and in various other writings, the subseriUng witnesses 
shall be designed in the body of the instrument or other writ, 
under the sanctkm of nullity, if this reqiusite b omitted. 
Hence, if there is a material discrepancy between th^ name 
of the witness, as written by himself, when he subscribes, and 
that inserted in the body of the deed ; and if it can be said 
that the twO: names are truly different, and not merely different 
modes of spelling the same name, the writing beoooies liable 



I Htfdttny Jifk > Ben, p. ML 

' CojOand o. Busby, 14tii [Febnisry 1771, mentioned in note to Henn 

Syme, eod, cfii. Fac ^ 



1KE6I8TKATION. 83 

to the abjecticMi, that the ststutory requiate has not bee»coiD-. 
piiad wi^, because h will be argued thai the subseribiog 
vittMBB has not been deagned hi the deed, but some diffesent 
penoD. The difference between < Thomas Hill,' and 
' ThoBUHi HiDoek,' and that between ' Thomas Wtfs,' aaad 
' Fnacas Wan,' were in two instances held sufficient to buU 
lify deeds ^. In another case, howeter, where the witneBses 
subscribed an instrument of sasine, as ^ William Moir, wit« 

* ness,^ and * Alexander 6arh)ck, wiltiesSy and in the body 
of tbcf instrument the witnesses designed were ' William Moor,' 
and * Alexander Garvock,' an otgeetion founded o» the dia* 
crepancjr was repelled, although not without difference of 
opinion on the bench ^ 

The eieccion statute 16th Geo. II. cap. ll^ requixes, that 
a daimanf s saanie shall be registered, before he can be ad- 
vilted 1o the roU^. This ptovision was intended as follow* 
ing out the previous kw, established by former statutes, that 
sasines are of no effect, if not registered, except in questions 
with the granters <^ the rights, or their hdrs. By the Scot- 
tish act 1617, cap. 16, every sasine is appointed to be fully en- 
grossed in the register, within sixty days of its date, under 
the sanction of nullity, in questions with third parties ; and 
die instrument is required to be returned by the keeper of 
the register, to the party, with an attestation, expressing the 
day, month, and year of registraticxi, and leaf of the reoord- 
bfloL It is also ixvlered, that the engrossing shall be exe- 
eoted ^thitt forty-eig^t hours of the presenting of the sa- 
fflie. As the operation of booking a sasine is one which oc- 
eopies some time, it was felt in practice, that, where many 

* ArdhlMds «. Manhall, 17th November 1787 ; Fac. Douglas, Henm 
and Company o. Clerk, 28th November 1787 ; Fac. 

* Stewart v. iStewmrt and Othen, fid Maich 1816 ; Fac 
^Aed-IO. 

* As to the time which must elapse between regiatrationandenrolinent, 

Me p. sa* 

f2 



84 OF THE INFEFTMENT. 

were presented at the register about the same period, they were 
afterwards occasianally inserted in an order different from that 
of their presentation, and sometimes omitted altogether. It wa» 
therefore provided, by subsequent acts ', that minute-books 
should be kept, in which a note of the sasine presented 
should be entered, with the time of presentment, and that the 
record should afterwards be made up in the order shewn by 
these previous entries. In consequence of this provision, the 
date of entry in the minuteJ)ook is now held as the date of 
registration. It is, however, essential that the full registra- 
tion in the record shall afterwards hare taken place. 

Even where the instrument has not been inserted in the re- 
gister for some days after the entry in the minute-book, and 
where, if tlie date of actual registration were to be the rule, 
the claimant would not have been a year on record, the date 
of entry in the minute*book is held to be the date of t^b- 
tration*. 

' 1672, c. 16, and 1693, c. 14 

' Mackenzie o. Macleod, 9th February 1768 ; Bell, p. 264 ; Wight, 
p. 221. In this case a proof was led with respect to the mode in which 
the registers were kept in a variety of the counties in Scotland ; and it 
appeared that practices of the loosest description had crept in. Sometimes 
a jotting was made on the sasine at presenting, and the minute-book made 
up afterwards. At other times, the full registration was made first, and 
the minute-book drawn up from the register, contrary to the intention 
and provision of the act 1693. In the General Register at Edinburgh, the 
method followed was reguhir ; but even there it was often found impossiUe 
to insert all the sasines in the record within the sixty days. See Bell, 
p. 267, note. In this case also, the freeholders had taken the evidence of 
several of their own members on oath, in support of the fiict, that the sa- 
sines had not been engrossed of the date mentioned in the attestation, — a 
course which met with the reprobation of the Court ' The following are 
Lord Hailes* notes, not before published, of the opinion of the Court in 
this case: — 

^ PrtndmU — ^If there is an apparent nullity on the face of a sasine, the 
' freeholders may judge upon it; but I ^oubt how &r they could enter 
' into expiscations of this nature* Here was a certificate of an officer of 
* Court, esfade good. Freeholders are bound to meet on a particular day. 



REGISTRATION. 86 

The act 169S, cap. 14, requires tbat the entry in the mi- 
DUleJ)ook shall be immediaidgf signed by the presenter of the 

* tiiej canaot go into proofi, or adyoum. If they do not a4]oiini, the proof 
" wfaidi thej take will be es partej as h^ipened in this case. 

*' GmrdauiBmn. — "By the same rule which the freeholders took in this 
^ cMe^they maj set every right aside upon proo£ 

^ Mwlftgrfifa — I think the proof not competent. The objection reaolYed 
^ into an improbation and reduction. The i&eeholders might as well haye 
' alkged fidsehood against the cluster. Every objection that can be tried, 
' without uniaTelling, as the English call it, fidls within their competency, 
' but nothing else. 

' nr/MT.— Thought that the freeholders might take proofi, but waved 
( giving any opinion on the preliminary point. Shewed at great length 

* that inserting in the minute*boQk was considered in law, and from the 
*" necessity of the thing, as registration. 

^ JTesMt. — The preliminary point must proceed upon the supposition 
*' that a complete registration, and not only an insertion in the minute- 
' book, IS required : if this was necessary, and if the want of it appeared 
' sv/vie, the olgection must be good. • Were the freeholders to be allow- 
' ed to enter into inquiries such as that in the present case, matters would 
^ be inextricable ; and, therefore, upon the footing of utility, I would 
*• hold that they could not ; just as in the Court of Justiciary, diets axe 
*■ ptf emptory, and therefore trials for forgery cannot proceed there. I 
*' dftottld not tlunk that the objection as to a year's r^istration can be 
*' good, because the presenting or the inserting in the minute-book may 
*■ serve the purposes of the statute as well as the more fomud registration 

* could dOffyrthe purpose of the statute was to prevent surprise ; besides,- 
'-kmf there is a personal exception, for the parties who objected knew 
^ tliat the saaines had been presented in due time. 

' Amkimieek.^^A» to competency, the freeholders hold a meeHng^ not a 

* omrt That is an abuse in language. The freeholders must judge of 
' what is laid before them. They departed in this case from their duty, by 
*• Caking pnoft, and those proofs by parties and their agents, to whom no 
' oaths oii^t to have been administered. Now, it is in proof that the re- 
*" giatera, our supposed glory, have been most irregularly kept. It has 

* been supposed in practice, that putting a paper into the register was re- 

* ^stxmtion,— the check of presentments had been laid aside. It is of 
*■ gnat consequence to mark in the minute-book and in the record, because 
' this inyTlnTiy and this r^pstration may serve to check each other. 

*■ Coaittoun, As to competency, whether the disquisition competent 
*■ before the fireeholdera. Nothing can come before them which does not 
^ either appear mt fade of the writings produced, or may be instantly ve- 



86 



OF THE INFEFTMENT. 



sasine, and by the keeper of the register. But, in a case 
where the entry in the minute-book was not signed till a few 



xUM^ aay^or exftmilU,*if the tninule-lMDk itself taid bem-preduced, and 
from it, it had appeared- that the infeftment was more recent than a 
■jrear«f Imtit ii- a sepnate question how the objeiction is oompetent be- 
fore this Court ; the deckloas under this head are not uniform. In the 
rssa nf pomcnsion we maj' iiy it, althoufnh the fre^oUers could not Be 
tfaia as it wUl,! thtok that the minute-book must be the rule^ 

' JfaiaMdb.-^I put my judgment upon the act leth Gko. II. In it, 
,99^ittmmi means what is expressed in the act leM, which is unambi- 
guous. The act 1693 determines that the entry in tiie minute-book 
shall be the rule as to the- question of the term of days aHowed fbr regls- 
tratien. The act lflO« farther requfares that an entry be at sane ttew^ 
other made in the record. AU that is proved from the pnustice is, that 
it has been the custom to roister after the sixty days, but of this the 
act li99 sajTs nothhig. 

^'KmmaL Theacto 1093 and 1096 are not inconsistent, and they are 
botii tn force. The act 1096 repealed the act 1686. The Uw does not 
require impoostbUities ; tkne must be given for writing Into the veeovd. 
The sashie must remain with the cleik, till he can have time to insert it 
in the record $ ibr till he inserts it, he cannot mark upoR the principal 
hi what leaves of the record it is inserted. 

' AnsiidmlU-I do not admire the proof taken before the freidioidefa, nor 
the methods taken by the freeholden previous to the proof; and there- 
ibre I wonld incline to repel the defences, upon the footing ef j i ir ss w a i i 
^asesplMi As to tiie great question of registration, sasines must be regis- 
tered. Originally tHere was no minute-book. The act 1680 gave great 
authority to the minute4xx>k. The act of sederunt Iftth July 1092 puts 
the matter out of doubt ; that aet shews that the entry in the minute- 
book was the rule of preference. The very next session of Parliament, 
1098, an act was passed upon the plan of that act <tf sederunt, and it 
gives, in affect, the authority of a law to that act of sederunt Theli^pes 
seeing the minute-book to bear an entry in the record, must hold it to 
be eo reeorded; the keeper of the minute-book must instant^ ingross, 
and if he neglect, is liable to deprivation. The presenting of itself is not 
sufficient; for, if I look into the mmute-book, and see no sashie, I lend 
my money upon heritable security, and yet there may be a sssine at that 
time in the hands of the keeper, were presenting sufficient. I should be 
disapp<dBted of my- preference, by not seeing what by no search I could 
eee. If the regulations 169S were necessary at that time, they are 
more necessary now, when writings have become more numerous and 
longer. The act 1696 does, moreover, require actual registration in the 



R£GISTHATION. 87 

cUys after the entrjr was made, an objecticHi made to the re- 
gbtratioD on that ground was repelled, and the aaaine held as 
' reocmled of the date of the entry in the nunateJxiok, in le* 
spect of the loose practice which had been proved, in a pie- 
ceding case', to exist in the mode of keeping the registers, 
and of tbe mischief which voi^tii result from a rigid enforoe- 
moiit of the rule*. 

In another instance, a par^ had heen enraUed, without 
any specific olgectioDS being entered in the minutes of the 
freeholders; but it was stated in a cooqplaint against the 
rolment, and admitted by the opposite party, that there 
no entry of the claimant's saidne in the minute-book. These 
was, however, no minute-book kept in the county ; and aU 
though a prcxif by witnesses was ofered, that the actual entry 
in the register was several days subsequent to the date of the 
attestation on the back of the sasine, so that the sasine truly 
had not been a year on record, the Court repdled the objec- 
tions to the enrolment^. 

Various other questions have occurred with respect to the 
effect of errors, in regard to the mode of carrying the statu- 
tory provisicms into effect. Thus an objection to a dsim of 
enrolment was made by the respondents in a complaint, un- 

* fecord, but it does not ny that such registiatioii must be within siztj 
'days.' 

' On the 26th January 1768, the Lords repelled the objection ; but ap- 

* pmnted an act of aederunt to be made, in order to en&ree the statutes 
fc oonoeRdng registration, which, both aa to the fbrm of marking presenten, 

* and aa to the keeping of the minute-book, luid been greatly trana- 
' greased.* 

In notes by Sir Ilay Campbell on his session papers, Lord Pitfour*s 
opinion on the competency of Ihe proof is thus (^ven : ' As to competency, 
< difflcttlt to ascertain precise boundary : may take nnllitiea (i #. into ac- 

* count) but not prooft.*— See these notes in Appendix, No. 17* 

' Mackenzie, n^i 

* Earl of Fife and Others v. Gordon and Others, 8th July 1774 ; 
Wight, p. 222 ; Bell, p. 264, and Fac. 
^ Dunbar v. Sutherland, 10th March 1700 ; Fac. 



88 OF THE INFEFTMENT. 

der tlie following circuinstaiices :— *The instruioent of saskie 
was dated the 12th September 1806. It was presented to 
the keeper of the record on the 2dlh September, and imme- 
diately entered ad bmgum in the reoofd. It was. observed^ 
on the 4th October, that it had not been entared in the mi- 
nuteJbook, in terms of the act 1693. To obviate objections 
on that head, it was entered in the minute-book as presented 
of the last date. The attestation was altered, so as to make 
it conrespond with the minute-book. A similar alteration was 
necessary in the principal record, and the S5th of September 
was therefore erased, and the 4di of October inserted in its 
place. This sasine now bore to be recorded the 4th October, 
and it thus came to stand in the roister out of its place, and 
before several sasines that were recorded of eariier dates. It 
was argued, in support of the objections to the r^stration, 
that the sasine was not recorded in terms of the statutes, and 

« 

that the erasure in the attestation constituted a vitiation in 
substantialibua. The majority of the Second Diviaon of the 
Court were of opinion, that the provisions of the statutes must 
be understood as having been enacted under the sanction of 
nullity, if neglected ; and sustained the objections to the re> 
gistration of the sasine in question'. 

About a year afterwards a question came before the First 
Division of the Court, under circumstances similar to the 
preceding, the principal difference being, that there was no 
eiasure in the attestation of registration on the sasine produ- 
ced. According to the claimant's statement, in answer to a 
complaint brought against his enrolment, the facts were as 
follows : — The sasine, which bore date 12th September 1806, 
was sent to the record-office on the ^th September, and was 
copied ad Umgum into the record on that day. It was ac- 
cidentally discovered that there was a maiginal note on the 
instrument, which was not subscribed by the notary. The 
instrument was then taken away, and a new one written out, 

^ Drummond o. Ramsay, 24th June 1609 ; Fac. 



REGISTRATION. 89 

duly subscribed and executed, and returned to the record on 
the 4th ^October, on which day it was entered in the minute- 
book ; and the date of ^th September, which was prefixed 
to its insertion ad hngum in the record, was erased, and the 
date of the 4th October superinduced, to correspond with the 
entry in the minute-book. The (^posing party, on the other 
hand, offered to prove, by the evidence of the notary, of the 
keeper of the record, and of other witnesses, that the. at- 
testation on the original instrument of sasine had been truly 
vitiated, under circumstances very similar to those in the last 
mentioned case, and that the present instrument had been 
mode out with its fair attestation, in order to avoid the objec- 
tion. The majority of the Court held that the proof was in- 
competent ; and that as, ex Jkde, the entry in the minute- 
book, and the attestation, were unimpeachable, whilst there 
was no necessity for any date prefixed to the entry in the 
principal record, the sasine ought to be sustained'. 

But although, in the ordinary case, the entry in the mi- 
nute-book is held as the date of registration, such entry by 
no means supersedes the necessity of a subsequent recording 
of the sasine at full length, in the body of the register. The 
act 1617) cap. 16, requires the keeper ^ to engrosse the whole 
* body of the writ in the register," under the pain of depriva- 
tion of oSce ; and the act 1696, c. 18, declares, that no sa^ 
sine shall be of any force against third parties, unless *' duly 
^ booked and insert in the register/ A practice having after- 
wards crept in, of not engrossing in the register the whole of 
the notary^s doquet attached to sasines, it was provided, by 
act of sederunt, 17th January 1756, that the entire sasine, 
including the whole of the notary^s doquet, should afterwards 
be inserted in the record, under the sanction of nullity. 

The eBkct of these repeated enactments, is to render an 
oniisfibn in the register of any material part of the sasine, or 
an error in copying such part into the rccordf, fatal to the re- 

^ Adam v. Duihie, 19tb June 1810 ; Fac 



90 OF THE INF£FTMENT. 

gistratioD. Thus the omiflrion of certain lands, in the copy- 
ing into the register, of diat part of the sasine in which the 
notary attests that delivery was given, although they were 
included in the precept of sasine in the register, was heM lo 
be fatal to a claim of enrolment founded partly on these lands ^ 
In a very recent case, the clause of delivery in the claim- 
ants sasine bore, that sasine was givai ^ diet. vUlae et terrarum 
' de Eastertown de Lesmuidie (inibt eompinehenden. tevtiam 

* partem terrarum de Invercharrachy, tertiam partem terra- 
' rum de Auchnastank, una cum tertia parte terrarum de 

* Belchirrie, molendinum de Liesmurdie), tensB molendinarias, 
^ multuras, sequelas, et lie knaveships ejusd {* &c. In the re- 
gister the words within parentheses were omitted. In evidenioe 
of the extent, there was produced a retour, ^ in omnibus et 
^ singulis villis et terris de Eistertown de Le«nurdie, te^rtii 
^ parte terrarum de Inverquherache, terdA p^rte terrarum de 
^ Auchnastank, et tertia parte terrarum de Bdichiiie, cum 

* earundem pertinen.'' The Court dismissed the daim, on 
the grounds that the recorded sasine did not correspond with 
the retour, and that the sasine could not be considered as 
duly recorded*. 

Errors in copying into the record the t/ear in which the sa- 
sine, or precept of sasine, bears date, have also been found to 
void the registration ; and this equally holds wh^ha* the er- 
ror has been committed in the year of the Christian ana, or in 
the year of the king'^s reign. Thus, in one case, an enrolnMnt 
had been made on a sasine, which bore date, * anno domini 

> Orej V. Hope, 33d February 1790, Fac Note from the Sesnon 
Papers of Lord President Campbell, on reclaiming petition. — * Inierlocu- 

* tor clearly right Sasine taken out of the register. Any person, there- 
' fore, examining the register, would see nothing but the record copy* — 

* Mon^oddo^ Minute-book only supplies the date— lAu^JM-CMb. Clear 
' that the interlocutor is right. Atteitatlan on aulne affbrda only pve- 
^ sumptive eyldence. Minute-book is not registration, short description 
*■ only. Evidence of date.' — * Adhere.* 

* Stewart v. Lord Fife, 30th February 1887 $ Shaw, and Fac. 



OF THE VAI-UATION. 91 

^ millesiaio octiiigeDterinio vigesiino jinfito^ mensis vero Aprilis 
'^ die dedmo, regnique S. D. N. Greorgii Quarti, &c. anno se- 

* cundof but, in the register, the word prnno was omitted, 
alUioagh, in other respects, the date was accurate. The dates 
of the charter and precept, as engrossed in the instrument of 
sasine, were also correctly given in the record. The error, 
however, was found fatal to the enrolment ^ In anotha: in- 
stance, the precept, as registered, bore date, ^ anno millesimo 

* octhagentesimo et decimo tertio, regnique nostri anno quadra- 
^ gerimo quarto,^ instead of * quvnquagesimo quarto,** the true 
date; which error was also found to be fatal to the enrol- 
ment'. 

SECTION 3. 

Of the Claimanfs Valuatiofi. 

. With respect to the valuation of the land which aifords a 
freehold qualification, the statute of Charles II. 1681, c. 81, 
has declared that the claimant shall be infeft either in ^ a 
^,fbrtjf shiBing land of old extent^ holden of the king or prince, 
^ digtifict Jrom the Jeu-duties^'' or ^ where the said old extent 

* appears not, that he shall be infeft in lands liable in public 

* binden for his Majestie^s napply Jbrjbur hundred pounds 

* ^indued rent.'* There are thus two measures pointed out 
of the valuation of the qualification, the old extent and the 
valued rent ; and it will be necessary to consider the nature 
and evidence of both in their order. 

1. Old Extent, 

The valuation by Old Extent is of great antiquity. In its 
ongin and whole history, it is involved in much obscurity, 

^ Mftcqueen o. Nairne, 23d Jaii. 1823 ; Fac., and Shaw, ii. 637* 
* Denniaton «. Speirs,' ISth NoTember 1824 ; Shaw, iiL 286. 



98 HISTORY OF OLD EXTENT. 

and has exercised the research and ingenuity of lawyers and 
antiquarians for a long period. A few years ago, great ad- 
ditional light was thrown on the subject by an eminent law- 
yer, in the course of a question involving this subject, which 
depended before the Court ; although, from the very imper- 
fect state of our ancient records, much remains still very ob- 
scure, and probably will long continue so ^ 

There were two objects which early called for a valuation 
of lands in this country. The one was the levying of taxes 
on those occasions admitted by the genius of feudal govern- 
ment; the other, the ascertainment of the amount of the feu- 
dal casualties due by the vassal to his superior. 

In the course of the twelfth and thirteenth centuries we 
know that considerable contributions were levied by the sove- 
reign on different occasions. It can hardly be doubted that 
these aids were collected according to some fixed rule or pro- 
portion ; and although history affords no light on the sul^ect, 
yet the expressions, carraaita terrasy bonaia terras (ploughs 
gate and ox-gaie of land) which occur in deeds so early as 
the eleventh century, may be regarded as indications of valu- 
ation. Lord Hailes first pointed out a document, in the 
Chartulary of Aberdeen, shewing, that, in the reign of Alex* 
ander III', the expression antigua extenia was used^; and 
it has been inferred that the valuation so denominated must 
have been older than the reign of that monarch ; but whether 
this antiqua extenta was a general estimation of the whole 
lands of the kingdom, is a point at least not established by 
any certiun evidence 

* The followin{( short account of the present state of our knowledge on 
this subject, is derived from the learned and able memorial written by Mr 
Thomson, in the case of Cranston, 16th May 1818. 

* Alexander III. r^gned from 1249 to 1286. 

^ In the Chartulary of Aberdeen (lOI) we have ' Rftptak B^fpn Aleix- 
' dri Tertii vicecomitat. de Aberdene et de Banfil* Among other articles 
this occurs, ' de Thanaglo de Nathdole, tscwuhim jmUquam Mt^nAwi, xlix. 
« lib. et xvi denar.*— IToUm* AnnaU^ voL L p. 324. 3d edit 



HISTORY OF OLD EXTENT. 9S 

The first proof which exists of a double valuation, or an 
old and new extent of lands, is afforded, not by any document 
relating to taxation, but by retours, framed in obedience to 
briefs issued by Edward I. after his successful inroad into 
Scotland. The first of these retours relates to the succession 
to the lands of Riccardiston, in the county of Edinburgh, and 
is dated 18th February 1804. The brief is not extant. The 
retour bears, that the estate is holden of the Lord John de 
Soules, who held it of the Steward of Scotland, and that, * va- 
^ luit tempore pacts in omnibus exitubus per annum x libras, 
^ et nunc valet xx solidos.'" Two other briefs were issued 
by Edward I. relative to the barony of Brade, also in the 
county of Edinburgh ; the one directing the enquiry, mier 
alia *' ce que meismes les terres et tenementz valent per an en 

* totes issues ;^ the other proceeding on an application for a 
grant of the ward, and ordering the inquest to say, ^ quan- 

* turn custodiailla valet per annum, in omnibus exitibus^^rto 
^ verum valorem.'* A retour, dated 14th July 1805, ' super 
^ extenium baronise de Brade,"* appears to have been drawn 
up in answer to both briefs, and bears : *• Item dicunt, quod 

* dicte terre tempore pads, qitandojuerunt edvficate et culte 
^ per totum, cum molendino, et omnibus aliis commoditati- 
i bus, valebant xl marcas, sed x0nc, propter destructionem 
< guerre due partes de Brade et de Groutehill, de quibus 

* dictus Henricus obut vestitus et sasitus, valent hoc anno 
' viiL marcas, quia in nuUo edyicantur : Item dicunt, quod se- 
^ fiundo anno, si molendinum sit constructum, et terra edifi- 
^ eata et de hominibus kabitatay valebit xii marcas ; et tertio 
' anno xiiii marcas ; et quarto anno xvi manias ; et quinto et 
^ sexto anno, quolibet anno valebit xviii marcas,^ &c. 

These curious documents are very instruaive. They show 

distinctly the precise meaning of the expression * tempore pa- 

^ ds^ in retours, about which lawyers were much divided. It 

plainly agnifies the value of lands in a time of peace and 

1 



94 HISTOKY OF OLD EXTENT. 

tranquillity, in oppoaitioKi to its deteriorated condition after suf- 
fering from the ravages cH war; and, considered as a jArase 
in general use, it probably did not refer, at first, to any defi- 
nite period common to ail retours, but generally to the oondi- 
tidn of landA in tranquil times^ although, in process of time, it 
certainly may hftve oome to have had a more definite meaning. 
These retours also shew, that, previous to the reign of Ro- 
bert Bruce, which, for a reason to be mentioned immediately, 
had been fixed upon by lawyers as the period when a double 
extent was first introduced in retours, this mode of valu- 
ation was practised. They farther demonstrate, that, origi- 
nally, the old extent, or valuation * tempore pads,'* was high- 

« 

er than the new extent, or ' fiunc vdlenC of lands, whkh last 
was the estimation which resulted afta* the deterioration of 
war. 

From the phraseology relative to the new extent of the laat 
menticmed retour, it seems quite certain that it was a valua- 
timi made at the time ; although it would be rash to say, that, 
in other and later instances, the ' nunc valent'* mfty never 
have been derived from some general valuation fiv the pur- 
pose of taxation. It is also not improbaUe that the dki ex- 
tent of retours may have been derived from a similar sooroe, 
although no evidence on that subject is to be found. 

The first example which we find of any double valuation 
in regard to die levying of imblic aids, is affiirded by an in- 
denture entered into between Robert Bruce «id the temporal 
members of a parliament held in the year 18S6, by wUdi % 
tenth of the rents of land was granted to that monardi, * jax- 
^ ta antiquam esientam terrarum et redituum tempcve boosr 

* memorise Domini Alexandri, Dei gratia. Regis Scotorom 
^ iUustris ultimo defoncti, pro ministeriis ejus fideliter f»- 

* ciend. excepta tantummodo desthictione guerrse, in qno ca- 

* su fiet decidentia de dedmo denario preconcesso, secundum 
^ quantitatem firmie quae occasione predicta, de terris et 



HISTORY OF OLD EXTENT. 96 

' libus predictis levari non poterit, pro ut per inquisitioiiem 
^ per vicecx>initein loci fideliter faciendam poterit reperiri ^J* 

The new valuation here directed to be made, was thus pre- 
cisely of the same nature as that in the retours quoted, and 
arose from the ravages of war. The old extent may have 
been a valuatbn, either made in the reign of Alexander III, 
or one known in his time, although framed at some preceding 
period. 

To pay the ransom of David II. an aid was imposed in 
the year 1857, * secundum verum valorem;'' and it was order- 
ed * quod hujusmodi taxatio renovetur, quolibet anno statim 
' post autumptnum.^ To pay off the arrears of this imposi- 
tion, the lands were again, in the year 1866, appointed to 
be taxed * secundum verum valorem et aniiquuvi.'* The 
lands of the kingdom had suffered dreadfully from the wars 
in the rrign of that monarch ; so much indeed, that, from re- 
cords of the several counties at this period, we learn that the 
total dd' extent of lands in the diflerent counties amounted to 
L. 48,S49 : 7 : 8, whilst the valuation ^ per verum valorem "" 
extended to L. 9»^3aid, 10s. only. 

In so ^ as retours between the years 1866 and 14^, have 
yet been made pubKc, the new valuation seems generally less 
than the old, although sometimes of the same amount ^ Mr 
Evskine, however, alludes ^ to some retours of the famUy of 
Stirling of Keir, in which the new extent is said to exceed 
the old. In the fifteenth century, the practice became not 
unomnmon of r^touring both extents as of the same amount ; 
and as it is improbable that two valuations, made at a con- 
siderable distance of time from one another, should exactly 
ooracide, it seems to follow, that the estimation of one^ or per- 
haps boA, extents was, in thesb instances, in a great measure 
arbitrary.- 

In the year 14S4, a tax was imposed by act of Parliament 

^ This indenture will be found in Wight*s App. No. I. 

* See Mr Thornton's Paper, p. 119. ' B. \l t. 5. sect. 32. 



96 HISTORY OP OLD EXTENT. 

for the payment of the expences incurred by James I., during 
his detention in England ; and it was ordered, * that all the 

* lands of the kinrie be taxt efter as they are of avail fiotv, 

* and that but (without) fraud or gile.^ There is no authori- 
ty for the conjecture of Lord Karnes, that the new extent in 
retours, subsequent to the year 14S4, was derived from the 
Valuation made in that year; nor is it true that in all retours 
of a posterior date the new extent is larger than the old. 
There are various instances between the years 1484 and 1474, 
in which both extents are returned as the same ^. It deserves, 
also, to be mentioned, that, from the great depreciation in the 
value of money, an increase in the nominal estimation did not 
always shew that the real value of land had actually been 
augmented. The worth of the coin of James I. was nearly 
one-half less than that of Alexander III ^. 

The new extent, or present value, oontiinied to be the rule 
according to which several successive taxes were imposed, 
down to the reign of Mary, when the valuation by old extent 
was resumed, and continued on various occanons subsequent^ 
ly to her reign. In the year 164S, taxation according Co 
valued rent was introduced ; and continued always afterwards, 
with the single exception of the year 1666, when a tax was 
imposed according to old extent. 

From the statute 1474, c. 10, it would appear, that the 
new extent, which was then inserted in retours, did not amount 
to the real value of lands ; and it was therefore by that act 
provided, that, for the future, the * avail of the auld," and the 
^ very avail' at the time of serving the brief, should be re- 
toured. It would appear that this statute was not long strict- 
ly adhered to in the practice of inquests ; and many suooeiss^ 
ful attempts to enforce it by the authority of a court of law, 
are to be found in the reports of the decisions of the Lords 
of Council between the date of the act and the commence- 

* See Mr Thomson's Paper, p. 12?. 

« L.I of Alexander III. was equal to L. I : 17 : 6 of James I. 



HISTORY OF OLD EXTENT. 97 

ment of the sixteenth century ^. Notwithstanding this legal 
iotefftreDoe, howerer, a practice became prevalent, in the 
ONirBe of the sixteenth century, of estimating the new extent, 
as bearing some certain proportion to the old, either by add- 
ing to the latter some aliquot part of it, or by making it some 
Bulti{de of the new. On this principle, Skene* says, that the 
new extent was estimated at four times the old ; and Balfour' 
states, that a merk of the latter was reckoned equal to a 
pound of the former. Neither, however, of these two rules 
was ever in general observance, so far as we know at pre- 
sent 

On a general view of the evidence on the subject of the 
old and new extent, derived from the documents recently 
biougbt to light, it appears that our eminent lawyers, who 
had written on this subject previous to our recent accession 
of knowledge, had been too hasty in forming decided theories 
as to the precise periods when these extents originated, and 
as to the derivation of the retoured valuations from the gene- 
ral tax-ndls of the kingdom. The progress of inquiry with 
respect to obscure subjects, besides explaining some parts of 
them, has often the effect of rendering more manifest the dif- 
ficulties attending other parts of those subjects ; and although 
we thus have a better chance of arriving at the ultimate dis- 
covery of truth, the effect, in the mean time, is to overturn 
many a speculation which had been previously thought to solve 
paints of difficulty in a satisfactory manner. 

With respect to church lands, a different rule appears to 
have been followed in the raising of aids, from what was oh- 
served in regard to temporal estates. This at least is true, 
since the poriod that we have any evidence on the subject. The 
first certain information relates to the imposition, in 1275, of 
a tax of one-tenth of ecclesiastical revenues, for six years, by 
Pope Gr^ory X., for the support of die wars in the H<dy« 



/ 



' See Mr Thonuioii's Paper, p. 13S. et teq. 

< De verb. iigiii£ ▼. Extent. ' Fr»ctick% p. 430, 



98 HISTORY OF OLD EXTENT. 

Land. A peraaa^ called Baiamundus, was dispatched into 
Sootlandk bs legsite on this occasion, under whose direction a 
tax roU, since well known as Bagimonf's roll, was drawn up, 
< noH secundium antiquam tawaiionem, sed secmuhtm verum 
* vahremK'' 

This valuation continued to be the rule according to which 
all impositions, both those of the church and of the govem- 
ment, were laid on ecclesiastical property. Theprdates, and 
other beneficed persons, had relief from their vassals and te- 
nants, according to the Jree rents of those possessors of the 
grounds \ There was thus no room, at least after 1275, for 
the estimation of church4ands by old extent, in the public 
loUs. Neither, in so far as regarded church-lands not sub> 
feued, was it necessary to insert the extents in retours, be- 
cause, in this description of lands, there was no room for feu^^ 
dal casualties, as the church never died There are extant, 
however, scHne retours ot church vassals of the end of the 
14th, and beginning of the 16th century, in which both old 
and new extents are Altered '. 

^ J. de Fordiin Scotichr. p. 780i 

* James VI. 1607, c. 277- 

9 Mr Thomson's Paper, p. 119. 

A manuscript, from the Audxinleck library, and bearing to have been dic- 
tated bj the late Lord Auchinleck to his con Mr Boswell, has lately been 
ptinted under the directions of a gentleman, who has kindly alloired me 
to make some quotations from it The following extract, relatiTe to the 
valuation of church-lands, and to the authority due to retoun of that 
kind of property, will be read with interest; although it la settled by a 
long series of decisions, that such retours must be received in evidence of 
the old extent. * A question,* says his Lordship, * may likewise be stirred, 
*■ as to retours of church-lands, and of such as were the property of the 
' crown i the doubt as to which arises from this^ consideration, that «n- 
' ciently, the property lands, as paying the rent to the king, were liable 
^ in no cess ; and as to church-lands, though they paid cess, yet the rule 
^ of payment of the cess was different from what obtained in the temporal 
*" Umds. For, first, there was laid upon the diurcfa a proportion of the 
' cess corresponding not only to the lands, but to the teinds which belong- 
^ ed io the church ; and in dividing the ce« laid upon a particular reHgious 
' house, the churchmen caused their vassals in the kiit-Iands held of them. 



EVIDENCE OF OLD EXTENT. 99 

Having given this short account of the history of this spe- 
cies of valuation, we now proceed to consider the evidence 
which must be adduced to a meeting of freeholders, that the 
lands on which a claim is made are of the requisite amount 
of old extent. 

The statute 16th Geo. II. c. 11, on the narrative, that the 
practice had become frequent of unduly splitting the old exr 
tent erf lands, with the view of making votes, enacts, sect. 8, 
diat the old extent of lands on which a vote is claimed, must 
be proved * by a retour of the lands, of a date prior to the 

• 

^ icfiere them of Uie ceta, oonlomi, indeed, to the extent of their laads, 
^ which wms mentioiied in their feu-charten ; but this extent was not like 
' the old extent of the temporal lands ; but was taken from a valuation 
' made hj the authoritj of the Pope, and his legate, Cardinal Bagimont. 
^ So thst neither in the property lands, nor in the kirk-lands, was there 
^ place fiff old extent.'--p^ 84.A. 

After stating that the king's property lands were retoured in virtue of 
special statute, his JLordship proceed.^ thus : *■ So being the case as to the 
< king's property lands, there can be no doubt that they may entitle to 
^ vole upon the footing of the old extent But as to the kirk-Iands, they 

* twBBAj csa ; fbr, though there axe numbers of services of heirs in kirk- 
^ lands, and the retours mention the old extent of them ; yet aa commonly 
*" the old and new extent are the same, and both are the same with the 
' &u-duty, which is conform to Bagimont*s roll, it is obvious that this is 
*' nU the extent which the act of Parliament 1681 fixed for the qualifica- 

* tioa« of voften. Yet cases nuiy happen even in kizk-lands, where the 
' iMour appean in the form of a proper election retour, the qU extent be- 

* ing difiexcnt from the new, and both different from the feu-duty ; in 

* which caae, although it is extremely possible that this has been owing 
^ to a blonder, in the jury supposing themselves entitled to take the de- 

* scxqitlon of the lands in the title-deeds, as proper evidence of the old 

* tmUsAf and *"**^lg the new correqiond to the rule in the county where 

* the lands lie; yet» aa this is but a possibility, and it is also possible that 
' the Janda were truly extended before they came into the hands of the 
*" duDch, the express authority of the retour in this case ought rather to 



*• It will be observed, that here the case is stated where there is no re. 

' tour exiBkiiig prior to the lands bemg in the chuzoh ; fiir, if there were 

soch ntoiir, whidi may happen, as some lands were given to the church 

in vcTf late timea, there can be no doubt' 

6 2 



100 or OLD EXTENT. 

* 16th day of September I68I9 and that no division of the 
^ old extent, made since the aforesaid 16th day of September 
^ 1681, or to be made in time coming, by retour, or any 
^ other way, is or shall be sustained as sufficient evidence of 
^ the old extent/ Previous to the date of this act of Geo. II, 
other modes of proof were admitted, as the statute 1681 made 
no limitation with respect to the kind of evidence. A re- 
touTy however, prior to 16th September 1681, is now the 
exclusive mode of proof. Thus, a retour in 1741, supported 
by the Respond Book in Chancery from 1591 to 1606, was 
held insufficient evidenced The like judgment was pnv- 
nounced in another case as to a sasine' ; and in a 'third as 
to a charter '; in both instances supported in the same way 
as in the first mentioned case. 

By the practice in services, the original service is lodged 
in Chancery, and it is also transcribed into the Books of 
Chancery. An extract is given out, when demanded, to the 
party retoured, which extract is received as legal evidence of 
old extent ; and even where the original service is not extant, 
an extract from the record in the Chancery books is held 
sufficient ^. The same rule is hdd to apply, although the 
testing clause of the retour is not completely filled up in the 
extract *'^. If, however, it can be shewn that the document 
lodged in Chancery as the original service is not gaiuine, ai> 
extract from the record will not be held as evidaice ^. Al> 
though it should appear, exjbcie of a retour, that there 




^ Hsmilton, l9th January 174{^; Elch. M. P. S3. 

* Dundaa, eod, die ; lb. 24. ( 

» Stewart «. Crawford, SSd Febmary 1745 ; Fak. voL i. p. 84. 
^ Colquhoun «. Freeholders of Dumbartonshire, 5th February 1745 ; 

Fak. ▼. i p. 61. Stewart o. Dalrymple, 28th July 1761 ; Fac. Maekie 
V. MaxweU, 29. July 1761 ; Fac. 

^ Chalmers v. Tytler, 19th November 1755 ; Fac The extract con- 
eluded with the words, < in cujus rei testhnonium.* In the pleading it 
seems to be admitted, that even in the record it was in the same form. 

• Cathcart r. Gordon, 9th March 1813 ; Fac. 



RETOUR. VALENT CLAUSE. 101 

been less than fifteen jurymen on the assize, this is not a 
good objection to it *, as we learn from the record that the 
number has varied at Afferent times from nineteen to ten. 

The Chancery Register is not the only record from which 
a retour of service may be adduced as evidence of the old 
extent. In one case, a Sheriff court record, containing co- 
pied into it various retours, was held, along with certain ad- 
wttmdeSy in the course of a process of sale of superiorities^ at 
the instance of an heir of entail, to afford sufficient evidence 
of a freehold qualification. An extract of one of those re- 
tours was afterwards delivered, by authority of the Court, to 
the purcliaser of some of those superiorities, and was depo- 
sited by him in Chancery, as in the case of an original re- 
tour*. 

Neither is it essential that the retour founded on shall be 
an inquest of service. If the assize has been held for the 
purpose of valuing lands, with a view to the imposition of 
public taxes, their verdict, if properly authenticated, will be 
held evidence of old extent, as the basis of a freehold quali- 
fication '. But a mere certificate of the keeper of a record of 
old extent, that certain lands are entered in that record, will 
not supply the place of a retour *. 

The retour must bear, in the vaUnt clausey that the estate 
is worth the requisite old extent ; because that is the clause 
in which the jury return t»pon oath the value of the lands ; 
and it is not sufficient that they are mentioned in the descrip- 

» Stewart v. Dalrymple, 28th July 1761, where twelve were held 
eoough. Stewart r. Maxwell, 15th January 1762, where thirteen were 
held sufficient* 

* Trustees of Fraser o. Fraser, 11th July 1800; Fac The adminicles 
were certain relative titles of 4he estate, which showed, that, at the date 
of the retour founded on, the person retoured had right to the lands in 
«|iiestioii, and seemed to account for the loss of the principal retour. 

» Oiabners v. Tytler sup. where an extract was produced from a record 
in Chaneery, of a retour of all the lands in the county of Edinburgh. Mon- 
crieffv. Erskine, 27th February 1761 ; Fac. 

* Sir John Gordon, 17th February 1767 ; Fol, Diet. v. iii. p. 403. 



102 OF OLD EXTENT. 

live clause in the beginoingof the retour, as lands of a certain 
number of pounds or merks ^ 

Buty within certain limits, the descriptive clause is admit- 
ted in illustration of the valent. Thus, where different lands 
are, in the former clause, mentioned as being separately of a 
certain old extent, and the total amount stated in the latter 
clause agrees with the sum of the particulars in the descrip- 
tive, then the retour is admitted as evidence of the extent of 
the several lands mentioned'. And this illustration is allow- 
ed, although there should be a anall difference between the 
total amounts in the two clauses, especially where that in the 
valent exceeds that in the descriptive. The difference will 
be presumed to proceed firom a mere error in summation, 
which certainly appears the most legitimate principle on 
which the illustration can be permitted in the case of a dis- 
crepancy between them ; or it may be arguefl, that, where the 
sum in the valent exceeds the total amount in the descriptive 
clause, that some of the lands have been underrated, but can- 
not have been overvalued. Accordingly, where the valent 
clause gave L. 517 : 3 : 4 as the value, and exceeded the total 
sum in the descriptive clause by L. 1 : 16 : 8'; and, in another 
case, where the former clause gave L. 11 : 8 : 8, and exceeded 
the latter by only 4d.*, the difference in both instances was 
held not to be fatal to the retour. The same decision was 
given where the valent was L. 16, 6s., and exceeded the de- 
scriptive by L. 1 : 2 : 8 ^, which was giving a much greater 
latitude than in either of the preceding instances, as the dif- 
ference bore a much greater {proportion to the sum-total. 

* Stewart «. Campbell, 22d February l^4b ; Falc. vol i. p. 83. Cnw- 
ford eod. die ; Elcfaiea, M. P. No. 35. 

* Case of Renfrewriiire, 18th January 1746 ; £lchie9> M. P. 92. 

' Fletcher v, Ferrier, 23d January 1781 ; Fac Colquhoun v. Free- 
holders of Dunbarton, 6th February 1746, both relating to the retour of 
the Dukedom of Lennox. 

« MaxweU t^. Bushby, 13th July 1776,'; Fac. 

* Bama «. Hamilton, 6th December 1780 ; Fac. 



DESCRIPTIVE CLAUSE. 103 

Wlieie, however, the cumulo estent in the valent clause was 
L. 7: 6 : 8, and the excess over the total amount in the de- 
waifiAre L. 5^ the Court thought this too great a discrepan-* 
cy to be attributed merely to an error in summation, and re- 
fused to sustain the retour K Again, where the cumulo ex- 
tent in the valent was stated at L. 11, Ss., and JkU short of 
the joint amounts in the description by 6s. 8d., and where the 
descnpdoBs of the dififerent lands were repeated in the valent 
immediately before the cumulo extent, there could be little 
doubt that the difference, arose merely from an error in caU 
culatian, and the Court sustained the retour '. Mr Wight is 
of opinion that^ where the amount in the valent is less than 
tbat in the description, the difference will not be fatal, pro- 
vided it may be subtracted from the extent of the lands on 
which the claim is made, without diminishing it below the 
requisite sum of 40s. ; but that if it will have this effect, it 
OGnsdttttes a good ol:gection to the retour '. 

The descriptive clause is also sometimes made use of in il* 

lustnuion, even where it does not bear a particular value at- 

tadied to each subject mentioned in it. Thus, where the de^ 

acEipUve clause bore, that the deceased died seised, ' de ter- 

^ lis de Gask, et de uno annuo-reditu 18 solidorum et 4 

< denariorum,^ (one merk) ; and the valent bore, ^ quod dicta^ 

* terns et aoouus-reditus valent nunc per annum iS mercas 

' et valueniot 10 iempors pads ;^ it was held tbat, as 

ammalrents are always retoured vakre seipsum^ there was 

BuScient evidence of the extent of the lands ^. Agun, where 

lands are retoured with an office in the valent clause, as w(M'th 

a particular amount ; and, in the descriptive clause, the lands 

' Scott •. Hamilton, 6tii March 1781 ; Fac 

' Fenier «* Gnhain, 7th March 1781 ; Fac. In the Faculty Report 
the Haem^aoaej is ernmeouBly stated at 7 metka 8d. In Moriaon*a fUction. 
arjr there is a &rther error in the deacriptive^ in stating the hmda of 
Dicgifaoni at SOs. Sd. instead of 20s. 

'W^t. p. 170L 

^ Ford joe «. Urquhart, SOth November 1757 ; F 



104 OF OLD EXTENT. 

are deBcribed as amounting to this same sum, and no value is 
put on the oflSoe at all, although it is mentioned, the retour 
will be sustained as evidence that the extent mentioned ap- 
plies to the lands ^ 

ff 

' Scot o. Tod and Millar, 20th February 1787 ; Fac and Supplement 
to Wi^t, p. f 6. Bavidflon v, Elphinstone, 0th March 1803 ; Fac. affirmed 
on appeal By the descriptive In this latter case, the deceased died selaed i& 
^ qiiinq, mere, terranim de Bister Glenboig, aiiag^* ftc ' una cumofikdo co- 
' ronatoriB,* ftc. ; and by the valent, ^ teme de Bister Glenboig,* &c. ^una 
*" cum officio coronatoris,* &c ' valuerunt temp, pac sum. quinq. mere* 

N9t$ o/«A« OpMmqfLvrd PtuidmU Campbelij in Dmridttm ▼. E^k k u im t, 

from hit Semon Papert. 

' Respondent does not chuse to take the grounds suggested in my former 
' notes, of objecting to the decision in the case of Mr A. Stewart, (Select 

* Dedirions, p. 166.), and perhaps he may be advised that it is better not to 

* tiak that ground ; but, on the contrary, to maintain that the office wsa 
*• in &ct not extended. But 1 cannot go along with him In tUa^ being 
( clear that it did make a part of the cumulo extent Of thia, the retour 
*■ itself is dedsiTe evidence. The valent clause is clear, and cannot be 
' rendered otherwise by a reference to the descriptive clause, which is 
' ambiguous, and still less by a reference to other retours. That of- 

* fioes were extended, appears fiom Mr A. Stewart's case and many 
« others, — Case of Locharthur. But, perhapa the Court thought in Mr A* 
' Stewart*s case, that the petty office of coroner of the rc^gallty of KiU 

* bride, created by the lord of regality, fell with the regality itseli^ Does 

* it make any difference whether the office is put first or last in the re- 
' tour? — Hermand, Good retour. Offices may sometimes have been extend- 

* ed, but oftener not, just like mills. When Mce» were retonred, it was 
' dOito Mereendo sui qfficiLm-^Meadowbank, Contrary. Offices extended. 
' — Bahnukk Lands alone extended — Craig, For sustaining the objection. 
' — Methven, For repelling the objection ; true it is extended, but it Is to 

* be presumed that it was valere te i/Mtim, where something else was added 
^ to the office besides the fees.— Jtalios Cferlr. In cases upon Lennox !«• 
< tour, valent was explained by descriptive clause ; valent did not mean 
« to take from the lands and add to the office.— IToodAoiiMiM. Descriptive 

* deariy applies to tiie lands alone.'— *9l^ Mofch 1808, Repel the objection.* 
The case was affirmed on appeaL In a late instance, a right of patronage 
was mentioned In the descriptive clause, along with various parcels of 
lands of di^rent extents, but no extent was attached to tHe patronage. 
In the valent, the ' foresaid kmdt,* without any mention of the patronage, 



DESCBIPTIVE CLAUSE. 105 

Ifl like niBiiiier^ in the descriptive clause^ certain different 

lanbypartsof a barony^ being specified as merk or diilUng lands 

of a particular amoont; and beades these a borough of barony, 

and also a town and fortalice, with gardens, mill, milUands, 

&c.beii^ mentioned as parts of the barony, but not stated as iX 

any particular amount ; and, in the valent clause, < esedem 

^ tetne oRaqne nupraacriptOy cum pertinentiis,^ being men- 

doned as worth a cumulo amount, which coincided within 4d. 

with the sum-total of the values of the shilling and merk 

ands, as specified in the descriptive clause ; there was held to 

be sufficient evidence of the value attached to each of the 

shilling and merk lands ^ In a case where, in the valent 

clause, a ten merk land was extended along with a pendicle of 

land, to ten merks ; and, in the descriptive clause, the ten 

merk land was described as of that amount, and the pendicle, 

although mentioned, was not stated as of any particular 

amount ; the Court, before answer, allowed a proof that the 

pendicle was comprehended in some lands named in the 

daimant^s charter, and afterwards found it proved, that it 

fiMrmed part of the ten merk land, and sustained the quaHfica- 

tion*. Where certain lands and an oflice were retoured in 

cumulo in the valait clause at eleven merks, and in the de- 

acripCive, the lands were described as worth five merks, and 

no value was put on the office, although it was mentioned, 

there was held to be no sufficient proof that the lands aflbrded 

a qualification '. 

If the valent clause bears, that the half of certain lands is 
worth a particular amount, that will not be held evidence that 
the whok is worth twice that amount, even although in the de- 

wcfe a^d to extend to twelve poundB, being the sum of the particulars 
moitkmed in the descriptive. The Court held this retour good evidence 
of the particular extents of the lands in the descriptive ; Montgomery «. 
Shaw, Ist June 1826 { Shaw. 

> Ifaxwell o. Bushby, 13th Juljr 1775 ; Fac. 

* Abetnombjr «. Baird, 28th February 1763 ; Elchies, M. P. 55. 

^ MorTBy V. Clerk, 1774 ; Wight, p. 170. 3 



106 OP OLD EXTENT. 

Bcripdre ebuiae the wkoleia mentioned as being of this double 
valued 

One retour may be explained by the Talent clause, but not 
by the deecriptive clause of another. In one case, the valent 
clause of a letour bore, < that the ten pound land of Ediug- 
^ bam and CuUoch'* was ^ worth, in time of peace, the sum of 
* ten pounds.^ The deacripHve clauses of two other retours 
were referred to, mentioning the lands of Edingham and Cul- 
locfa, as each b»ng five pounds. It was held that there was 
no sufficient evidence of the separate extent of Edingham *, 
But where the vaknt clause of a retour specified the ex- 
tent of one of two parcels of lands, which were valued tfi cu^ 
muio in the valent clause of a separate retour, the extent of 
the other parcel was held to be detennined by subtracting 
the specified value fimn the cumulo amount '. 

Although one retour may thus, under certain circumstan- 
ces, be eayilained and iUustraied by another, yet, in no case 
can a retour exjbde regular, and admitted to be genuine, be 
redargued by other retours, or by any extraneous evidence, 
where the allegation is that th^e is an error in the amount of 
extent ^. This was held even in a case where there was a 
strong presumption against the accuracy of the valent clause, 
from a very small estate being rated at so high an extent tA 
L. 50, and from this same estate being mentioned in other 
retours, as a pari of a barony extending to only L. 88*. 

> ACacdowal v. Buchanan, 20th February 1787 ; Fac., and Sup. to* 
Wl|^t,p.86. 

' Montgomeiy «• Aindie, 16th June 1818 { Fac. 

3 Davidson «. Hill, 22d June 1802 ; Fac^The ftUowUig la a note ^ 
Lord President Campbell on the Session Papen in this case : ' If the matter 
« were entire, it would be better to adhere literally and strictly to the 
*• statute. But the former dedsionB have allowed a latitude of construe- 
« taon, particularly Belschea o. Buchanan, SSth June 1790/ The case of 
Belsches is reported by Mr Bell, Elec. Law, p. 17a See also Scott » 
Tod, nip. 

« Chalmers, 28th July 1745; Elchies, M. P. 4L 

f Gibson V. Adinston, 13th June 1818; Fac. 



ONE OR MORE RETOURS. 107 

But, in Aoother imtanoe, where two retours were adduced U> 
prove chat oerUiin lands were of a particiilar extent, the one le- 
tour, as was alkged, proving the value of otie panrel of those 
lands, and the other that of another, the Court held it com- 
petent to allege certain inaccuracies in the detail of those re- 
toun, with the view of shewing that they in reality referred 
to the some parcel of those lands, and so did not establish a 
sufficient extent K 

Vfhae it is objected that the retour produced does not 
apply to the lands claimed on, the claimant may adduce evU 
denoe to prove their identity K But, in a case where a per- 
son claimed on certain lands, stated in his charter to be of a 
ccftab extent, conform to a certain retour there des c ribed, 
and this particular retour was adduced, valuing those lands 
at that extent, the Court refused to allow an investigatbn 
of titles, with the view of shewing that the lands in the char- 
ter and in the retour were really not the same, holding the 
identic to be sufficiently made out, and the inroposed investi- 
gation of the progress incompetent ^. 

A sin|^ retour may be received as evidence of as many quar 
lifkations as it contains distinct lands of the requiate extent se- 
parately valued, aooording to the rules already laid down ; and, 
on the other hand, it is not requisite that a vote shall be rest- 
ed oo one sulgect alone, instructed by a single retour, but it 
will be equally affiwded by two or more parcels of lands 
of the requisite valuation, instructed either by a retour for 
each parcel, or by one for the whole \ A single retour, how* 
ever, will not prove the valuation of more than one parcel of 
lands, unless the extent of such lands is siparai^ stated, 
either in the valent clause, or, at least, in the descriptive clause, 
and supported by a cumulo valuation in the valent Even 

* Uonigonery r. Ainalie, 18th November 1816; Fac. 

* Gcirtn V. Douglas, 4th March ; Sup. to Wight, p. 7- Abercrombj v. 
Baird, 88th February 1753 ; Elchies, M. P. 55. 

' Pulton and Kibble o. Cruxn, 12th June 1821 ; Shaw, and Se^s. Papers. 

* Makolm o. Allait) 23d January 1767 ; Fac. 



108 OF OLD EXTENT. 

«n infeftment/m) diviso, in the half o( oettain lands, the ex- 
tent of the whole of which is established by retour, and is 
more than twice the requisite amount, will not aflbrd a qua- 
lifieation^ 

By the act 16th Greo. II. c. 11. sect. 8, it is provided, as 
already mentioned, that ^ no division of the old extent, made 

* after the year 1681, by retour or otherwise, shall be held as 

* evidence of cid extent/ 

Where a penon was infeft in the ha^ of certain lands, 
without speofying in the titles any particular half, and the 
extent of the whole of these lauds was proved to be 80 raerks ; 
a voluntary contract, dividing the lands and extent, although 
before 1681, and possession following thereon, were found not 
to be of any avail in determining the extent of the half. 

Trifling dismemberments, however, for the purpose of 
straighting marches, have not been held to be fatal to the van 
luation of lands by old extent. Thus, in one instance, the 
CouK of Session, and afterwards the Committee of the House 
of Commons, disregarded the argument, that such dismem- 
berments ought not to be allowed, because, if the old extoit 
was only 46 shillings, the smallest alienation would reduce it 
below the legal requisite ; and if higher, any division of old 
extent was prohibited by the 16th Geo. II ^ In like man- 
ner, where, for the purpose of stnughting marches which had 
been disturbed by a public road, two acres of a ten pound 
land, constituting < not , J^th part of it,' had been disponed 
to a uaghbour, prindpally for a price in money, although a 
very small portion of ground was also given in exchange, it 
was held, that the extent was not affected \ although an at- 

' Dickson, 0th July 1747 ; Elch. M. P. 4a 

* Freefaolden of Lanarkshire v. Hamilton, 7th February 1745. ; Fakr. 
Elchies, M. P. 31. See particularlj the report in Elchies, %d vohnm. 

> Hamilton v. Bogle, Februarj 1781 ; Wight, p. 287. 

* Stewart ^.Gordon, 1 1th February 1803; Fac Note from the Session-Pa^ 
pers of JLord President Campbell : ^ This is clearly a sttajghtiag of maix^hes, 
< and nothing more. It might have been forced hy a process before the 
* sheriff The public burdens and valued rent, &c remain as before. The 



MILLS, FISHINGS, CHURCH-LANDS. 109 

tempt was made to rear up an argument on the clause of the 
act 16Ui Geo. II. 

Lands are not the only subject which has been extended, 
and is capable of being made the basis of a freehold qualifi- 
cation, although the act 1681 mentions that kind of sufaject 
only as pving a title to vote. According to Mr Wight, bmd 
has been interpreted as synonimous with estate ^ ; and vafious 
other betitable subjects, capable of being held of the crown, 
and of being extended or valued, are held to afibrd a qualifi- 
cation. Mills have been sometimes retoured ',; and there can 
be no doubt that they would be admitted as the foundation 
of a daim to be enrolled. 

Fishii^ have also been extended and sustained akn^ with 
lands, as the foundation of a freehold qualification^. They 
are equally capable of being made the ede basb of a vole \ 

An obsolete heritable oflBce, although retoiu^ of the re* 
quiate extent, will not aflbrd a qualificatiim ^. 

The general rule is, that lands, of every description, holden 
of the crown, when retoured of the requisite extent, ffve the 
ri^t to vote. Attempts, however, have at diffisrent times 
been made to estabtish exceptions to this rule. Thus, in the 
case of lands which have formerly constituted a part of the 
pfttiiflionj of the church, it has repeatedly been argued, that 
the examples which occur of retours of such lands, do not 
afibrd evidence of that genuine extent which the Legislature 
had in view, in framing the statutes on the subject. The 
groands of this argument will be found in the shmt account 
which has been already given of the mode of valuing church 

^ old extent, therefore, is not affected See the words of the act 16th Geo. 
* II. ctmcermng dividing or splitting the old extent, in order to multqilj- 
^iog Totes.* 

* Wight, p. 203. « Wight, p. 172. 

* Frecliolders of Dunbarton v. Campbell, 10th July 1745 ; Falc. 

* Gofdoo V. Duff, 7th August 1773, Fac. where the valuation was va- 
htgdremt 

* Stewart r. eund,^ 16th July 1756; Sel. Decis. See [the subject 
what aubjects besides lands give a vote farther discussed below, under 
Valued Rent. 



110 OF OLD EXTENT. 

property ^. The objection^ however^ has been repeatedly re- 
pelled ; and it is now* quite settled, that church-lands, of the 
requisite extent, afford an undoubted qualification', even 
where tlie old and new extent and the feu-duty are the same, 
the feu-duty being payable to a subject-superior '. 

Similar unsuccessful attempts have been frequently made 
to deprive retours of lands held of a subject-superior, of their 
authority as evidence of old extent. It has been maintiuned, 
that the asontaining of the old extent of such lands was use- 
ka^ as it was those persons only who held in capUe of the 
Crown, that contributed to supplies, according to extent, 
whilst thrir vassals were liable to them in relief, according to 
their free rent. A brief directed from the king^s Chancery 
to a vassal not holding of the crown, and service following 
thereoir, it has been asserted, were anomalous proceedings, 
inasmuch as the Crown had no interest in the ascertaining of 
extent, when no tax could be raised according to it, and in- 
asmuch as the subject superior of the vassal could not be 
bound with respect to any claim for his casualties, by mea- 
sures to which he was in no shape made a party. THe view 
whidi has guided the Court in such cases is, that the act 14n^4 
directs all retours, without exception, to contain old and new 
extent, and that the statute I6th Geo. II. admits retours in 
general without distinction, as evidence of extent. Accord- 
ingly, in a variety of cases, the objection has been repelled ^ 

There is a hmitetion, of the evidence of old extent affbrded 
by retours, introduced by that part of the act 1081 which 

^ See p. 07* «/ teq. 

* Klxkpatrick v. Irvine, 10th February 1747 : Falc. Kilk. Retour 1. 
Moncrieff «. Enkine, 27t)i Februaiy 1761 ; Fac. Stewart o. DaliTmple, as 
decidffd in the House of Lords, Itt April 1703, where acontraiy judgment 
of the Court of Seanon, 28th Julj 1761, Fac SeL Beds., was reventd. 
Cranaton v. Gibson, 16th May 1818 ; Fac ' 

' Cranston lUfNio. 

* Abercronib/ «. Baird, a6th July 1769; Fac, and Kamas Sd. Dec 
Stewart «. Dalrymple, 88th July 1761; Fac_Maclde o. Maxwell, 9IKh 
Joly 1761.; Fac Cranston v. Gibson, 9^ 



* DISTINCT FROM FEU-DUTIES.' Ill 

provides, that the old extent shall be * distinct from the feu- 
^ duties in feu Jands.' This provision is understood to have 
of^ginat^ in a clause of the act 1697, c. 277, which enacts, 
^ That all the stewards and haillies of onie part of his Heines 

* prapeftie, sail, with all convenient expedition, cause retour 
^ the hull landes of the samin, everie ane within his awin 

* boondesand jurisdiction, and that to the samin avaiie, quan- 

* tkfie and proportion, as onie uther landes lyand nixt adja- 

* cent to the same halden of his Majestic are set or letoured 
' to; havings neverthelesse, ane speciott regard to the Jree rent 

* tkai tkefiuare and reniaUere hes of the same iandsy besides 

* ikdrjewjermes and dewties pagfed be ^em to our Soverame 

* XordL^ The meaning of this enactment appears to be, that, 
after deducting the feu-dutj payable by the feuars of the 
crown lands, the extent of the remaining free rent was to be 
futimatfd in proportion to the retoured value of adjacent 
landa^ Hence, if it appears from any retours, that, instead 
of going through this prescribed process, the valuators have 
merely retoured the feu^duty payable to the Crown, as the 
Ml extent, then such retours have evidently not been framed 
ia oonfonmty with the injunctions of the act 1507. It was 
to guard against such erronecms retours, and to fulfil the in- 
teotioa of the L^islature in that statute, that the act 1681 
pnyvided that the old extent should be distinct from the feu. 
duties. In questions of this nature, the Court seems to have 
adopted the rule, that, where the feu-reddendo mentioned in 
the reiour, and the old extent, aro the same, or nearly so, 
and the feu-duty is payable to the Crown, thero is no legal 
evidence of the old extent *. The foundation of this rule ap- 
pears to be a presumption, thai, where the feu-duty and old 
extent are the same, or nearly so, the jury have not observed 

^ fee Mr Thomson's Paper in the cue of Craiuton, p. 60. 

* In the case of Colquhoun v. Douglas, 18th June 1829, mentioned be. 
lov, the Lord Jostice-^lerk said, *• The result, therefore, Is this; that, in 
» ^ the amtm as to feu-landa, where the old extent and the feu-duties 

* wci« nimig Ae mmw, or w9m A# msm, the Court hekl, that there was no 
< proof of the old extent distinct from the feu-duties.' 



112 OF OLD EXTENT. 

the directions of the act IBS! 9 but have merely retoured the 
ieu--duty as the extent, or have, by some process or other, 
been guided by the feu-duty in retouring the extent Be- 
tours liable to this objection appear under different forms. 
Where they bear that the lands * are worth thejeu^ttukf^ and 

* were of the same avail in Ume of peace,^ then the otgection 
is at once estaUished. Where, again, a retour was framed 
in this manner, ' quod totae et integre praedictae terrss valent 

* nunc per annum summam septem mercarum et quadtfaginta 
^ denancMTum usualis monetae regni Sootiae^ et valuerunt 
' tempore pacis summam antedictam ;'' and farther stated, 
that the lands were held feu of the king, ^ pro annua solu- 
^ tione summae septem mercarum et quadra^ta denariorum h* 
or where the retour was in these terms : * quod dictae terras 

* valent per annum summam BS solidorum et 8 denariorum 
^ et tempore pacis tantum,^ and bore, that the lands are held 
feu of the king, ^ pro solutione 58 solidorum et 8 denariorum 
^ monetae Scotiae,^ &c. ^ una cum 9 solidis mon* anted, in novam 

* augmentationen rentalis diet, teme ' ;^ or, where the old and 
new extents were L. 7 : 6 : 8, and the feu-duty L. 7, with 
6s. 8d« of augmentation ^ ; in these and similar cases \ it was 
held not enough that a distinct answer had been given to the 
question regarding the old extent ; and the extent was held 
not to be diHinct from the feu-duties in the sense of the aot 
1681. 

* Kerr v. Redpath, 10th November 1747; Elch. M. P. 49. The extent 
is erroneouily itated in the report «t 7 nierks 4d. The itatement la the 
text is corrected from the retour. 

* Freeholders of Perthahire «. Macara, 24th June 1747; Falc I. 9S6^ 
KUk., p. 497. 

' Freeholders of Linlithgowshire «. Cleland, 14th June 1746: Falc i. 

m, 

* In the case of Dickson of Newbigging, 10th November 1747; £lch. 
M. P. 49, the old and new extent^ and feu^luty, were each X» 6, and the 
augmentation Os. Sd. In the case of Graj o. Dickson, lOth January 1823; 
Shaw il p. ISO. (in absence), the old and new extent were h>b : 3 : 4» the 
feu-dutj li.6, and the augmentation 3s. 4d. 



* DISTINCT FROM FEU-DUTIES.' 113 

The same judgment was given where the new extent was 
stated at L. 4, 58., the old at L. 4 : S : 8, and the feu- 
duty at L. 4, 5s. ^ 

From what has been said, there appears to be no founda- 
tion for the interpretation which has been put upon the clause 
of the act, and upon the dedsions quoted above, according to 
which, it is held that the extent must amount to 408., after 
deducting the feu-duty. The deduction was not to be made 
in that stage of the proceedings, but at the time when the 
jury were retouring lands in obedience to the act 1597, at 
which period it was incumbent on them to estimate the ^ feu- 
^ rents,^ previously subtractiiig the *• duties paid^ to the king. 
The account of the matter given by Mr Wight ', does not 
appear to bear the construction which has been put upon it. 
After quodng the act 1597, he says, ' it was reasonable that 
' those who held their lands of the Crown in feu, should 
^ prove that their Jree-renty after payment of their feu-du- 
' ties to the king, wcu of that extent^ these feu-duties being 
* no part of their estate,"* which seems to be quite intelligible, 
upon the idea that the deduction was to be made by the 
jury «. 

>Colquhoun«. Douglas, 18tb June 1828; ShawiA07, affirmed. If 
one were to indulge in speculation in this case, it might be coi\jectttred, 
that the feu-dutj had been formerly Ii.4 . 3: 8, and afterwards, by aug- 
mentation, at some renewal of the investiture, had been raised to L. 4, 6s. 
and that the jury had retoured the former as the M extent, and the lat- 
ter as the new. 

* Page 179. 

* An argument in fiivoiur of this view of Mr Wight's meaning is derived 
ftvm an opinion of that lawyer on a case submitted to his conrideiation ; 
which case and opinion were annexed to one of the papers lodged in the 
case of Colquhoun v. Douglas 9up. The question related to the estate of 
Olenmoriston. Two retours were said to contain, in the descriptive 
clause, certain parcels of forty shilling lands ; and the old extent of the 
whole was stated in the valent clause at L, 37, and corresponded with the 
total amount of the particulars in the descriptive. The feu-duty was 
mentioned in the retourat L.87: 6: 8. The old extent was thus <Mf than 
the feu-duty; and yet Mr Wight, hi his answer on this case, was of opi- 

H 



114 OF OLD EXTENT, 

Although the Court hai^ undoubtedly held that the old 
extent is not distinct from the feu-duties in the sense of the 
act 1681, even in cases where the old extent and feu-duties 
were not of the same amount, yet in those cases they were 
nearly the same ; and the Court has not yet directly decided 
in any case that it is necessary, that mare than 408. should 
remain after deducting the feu-duty mentioned in the retour ^. 

nion, tliat each parcel of fort^ shiUiiig lands a£forded a freehold. It will 
be observed, that there ia a diaiinction between this caae and that of Col- 
quhoun, inaamuch aa in the former the partHeulan of the old extent of the 
▼alent dauae are stated in the deacriptive ; and this drcumatance may be 
held to orercome the preaumption, from the nearly ooindding value of the 
Kni^uty and old extent, that the jury were influenced by the amount of 
die feiipduty in retouring the extent. 

> See particularly the opinion of the Court in the Faculty Beport of 
the caae of Colquhoun «. Douglaa, nipra. The following viewB on thia sub- 
ject, from the manuscript of Lord Auchinledc already alluded to, are very 
intereeting; and, it will be observed that he aays nota word aa to the ne- 
ceaiity of any lisriHoiioii. « In the act 1661,' aays hia liordship, pb 13, Mt ia 

* aaid, that the old extent must be distinct fit>m the feu-duty in feu-laada ; 
' which is a passage aome people axe apt to mktake. But, when it ia ex- 

* plained, it will appear to be quite obyiau& In order to thia, it ia proper 
' to observe, that it came to be a practice when lands held feu, the inquest, 
^ in anawer to the queation, Q^Mmkm ianm fmleni mme, ei quantum mIm- 
^ runi 4>ttm 4t Itmpart paoUy very improperly returned their answer, valmt 
*• the predae sum that they were bound to pay of feu-duty, ti imUum tm* 

* hunmt mnporg pad$. It ia obvioua that thia waa a most absurd anawer 
' to the queation put by the brieve, and truly waa answering croaa pur* 
< poaes. For the quesUon waa, what the lands were worth according to 

* the old extent or tax-roll of Scotland, and according to the new extent, 

* which waa appointed aftenrarda to be contained in every retour ; where- 

* aa the answer given, that the superior waa entitled to a certain feu-du^, 

* both in time of war and in time of peace, waa no anawer to the question 
' put However, as this had come to be a general practice, it occurred to 
' the Parliament 1661, that, when they were to fix the qualification of an 

* elector at ferty shillings of old extent, it waa necessary to guard against 
' this kind of improper old extent, which waa to be met with hi feu-landa, 
^ leat a trifling property, auppose an acre of ground, only, which paid fer^ 
c ahillinga Soota of feu-duty, ahould have entitled to a voice in the dee- 
' tiona, upon the feith of one of theae blundering r«toura; and therefere 
' the law requires that it ahall be a proper old extent, not the erroneous 



* DISTINCT FROM FEU-DUTIES.' Il5 

From this explanation it is evident, that it is from feu-du- 
ties jMiyodfe to the king that the extent must be distinct ; and, 
it has acoordin^y been decided, that, where the retour is that 
of a subvassal, and the duty is payable to a subject superior, 
no objection lies against it, even although the old and new ex- 
tent, and the feu-duty, are all retoured as of the same amount^. 
Although there seems every reason to believe, that a retour, 
framed in such a manner, could not have proceeded on any 

extent taken only from the feu-duty ; and, accordingly, in many canes 
there are feu-lands which have their old extent properly ascertained by 
a regular retour, and theae lands entitle to a vote, although there may 
be also blundering retours, fixing the extent to the feu-duty ; for it is 
proved by the regular retour, that they are a forty shilling of old extent, 
properly so called, which consequently is distinct or difierent from the 
feu-duty, or the extent taken from it It is to be observed, that some 
retours of the blundering kind above mentioned bear expressly, that the 
fMtleni arises from the fbu-duty by adding kmquam fnuHjirma ex dMu ter- 
m deXAia. Others of them make no mention of the Fmidffirma ; but when 
one sees the feu-duty mentioned in the retour, which it always is in the 
Tenend. clause, and that it and the old extent and new all agree, this is 
sufficient evidence that the extent was taken from the feu-duty. 

^ It is a very nice question, how far, when a retour bears the old and 
new extent to be the same, it ought to be T^;arded as proof; because this 
has almost constantly proceeded from a blunder in the inquest ; and if 
the retour «r ftuM appears to be blundering, it may well be argued that 
no regard ought to be paid to it. And in my own private opinion, every 
retour which makes the old extent and new the same, of landa which 
made no part of the old kingdom of Galloway, I should look upon as 
blundering: for it is absolutely Impossible to suppose, that lands conti- 
nued to be of the same rent from the time at which the old extent was 
taken up, to the time that the new extent was taken up; for that was a 
period of above 200 years ; and it is well known, as was observed above, 
that the new extent was three, four, and even five times the old extent 
in dififerent counties. But if the lands were part of the old kingdom of 
Galloway, and consequently it was altogether uncertain when the old ex- 
tent of them was fixed, and therefore the disproportion between the old 
and new could not enter into the scale of evidence, I should, in that case, 
follow the authority of the retour, unless it happened that the lands 
truly held feu, and for the same fisu-duty which was made the old and 
new extent I have seen very old retours of Adamton, where the old 
and new extent are the same/ 

' Gibson v. Cranston, rayi* 

u 2 



116 OF VALUED RENT. 

accurate estimation, and that the jury had carelessly returned 
the feu^uty as the old extent; yet, as the clause in the 
act 1681 has been interpreted to relate to crown feu-duties, 
and as the statute 16th Geo. II. admits retours in general, 
without exception, the Court could hardly act otherwise than 
sustain such a retour as that in question. 

2. Of Valued Rent. 

The other measure established by the act 1681, of the va- 
luation of the estate requi^te for a freehold qualification, is 
the valued rent ; to the history of which it will now be pro- 
per briefly to advert. 

It has been already stated, that the present system of taxa- 
tion by valued rent, was introduced in the year 164f3. By 
act of convention in that year^, an ud was imposed, and rolls 
of valuation were ordered to be drawn up, in each shire, by 
parishes, in framing which the commisaoners were directed 
^ to informe themselffes of the iust and trew worth of every 
^ p soun or persouns thair p"'nt yeares rent of this crope and 
^ yeir 1648, to landward, as weill of lands and teinds as 

* of any uther thing, whereby yeirlie proffeit and oommoditie 

* aryseth.^ 

In the year 1649, commissioners appointed by act o^ Par- 
liament', were directed to inquire into the true worth of the 
whole rents within each shire ; to rectify former erroneous va^- 
luations ; to * set down a roll for every paroch,^ in every shire^ 
consisting of various items ; and then * to cast up the totall 

* of the valuation of the whole shire.'' The valuation by old 
extent was revived, in one instance, in 1665^ and was then 
abandoned for ever, in so far as regarded taxation. In 
1667% the system of valued rent was resumed, and the com- 

1 ISth August 1643. > 4th August 1649. 

' 4th August 1666. 

* 23d January, Act of Convention. 

2 



COMMISSIONERS OF SUPPLY. 117 

misflioners were dii'ected ^ to consider the valuations of all 
• lands, teynds, and other rcall estate f to approve of those 
where they seemed just ; to value of new such portions of 
lands, as had formerly been valued together, from belonging 
to one proprietor, and were now in the hands of different pro- 
prietors, and, in general, to rectify erroneous valuations. 
From the original rolls, which are in few counties preserved, 
the cess-books have been drawn up ; and, according to the 
valuations in these books, the land-tax is imposed, and the 
requisite value which affords a freehold qualification is esti- 
mated. Each proprietor's estate, although conasting of va- 
rious lands, is generally valued in one sum in these books. 
Hence where purchases have been made, and it is intended 
to ascertain the requisite valued rent for a vote, it becomes 
necessary to have recourse to the Commissioners of Supply, 
for the purpose of having the total valuation divided amongst 
the portions into which the original estate has been separated. 

As it thus appears that the Commissioners of Supply have 
important functions to discharge, in dividing cumulo valua- 
tions, and as questions are continually arising with respect to 
the regularity of their proceedings, it will be necessary to en- 
ter into some inquiry relative to the qualification of those 
commissioners, the constitution of their courts, the forms and 
rales which they must observe in framing their judgments, 
and the power of review of their proceedings possessed by 
the Court of Session. 

Since the annual land-tax was made perpetual^ under the 
power of redemption, by act 38th Geo. III. c. 60, commis- 
sioners, for the purpose of carrying that act into execution, 
are still appointed, from time to time, by acts of Parliament. 
A particular qualification is, however, attached, by the acts to 
the office, although the individuals are specially named. The 
statutes refer to the act 38th Geo. III. c. 6, by which the 
same qualification is imposed, which was required by the 
previous supply acts. It is required that those named 
shall be infeft in property or superiority, or possessed as 



118 OF VALUED RENT. 

proprietor or liferenter of lands, valued in the roll of the 
county where they act at L. 100 Soots per annum ^, with the 
exception of the eldest sons and heirs apparent of per- 
sons so infeft, who are entitled to vote in those characters 
Without fiirther qualification. Both superior and vassal are 
entitled to act on the same L. 100 of valued rent ^ Two per- 
sons were also found entitled to act, in virtue oi infeftments 
in the same lands, although neither held immediatdy of the 
crown, but were botli removed several steps from it ^ A pe- 
nalty of L. 90 is imposed by the acts, for every ' acting' 
without this qualification, to be recovered in a summary way, 
at the suit of any heritor, before the county court, or Court 
of Session; and this pio^sion has been intorpieted in the 
latest judgment on this pdnt, so as to inflict one penalty only 
for the appmntment of a clerk, and the fixing of his salary, 
although two acts, but taking place at one meeting^. The 
penalty is recoverable, at the suit of any heritor, before the 
county court or Court of Session. 

Besides the persons thus qualified, certain oflSce4>earers of 
boroughs, if named or appointed in the statute, are entitled 
to act as commissioners ; such are the provost, baiUe, dean of 
guild, treasurer, master of the Merchant Company, deacon- 
convener of the Trades for the time being, of any royal bo- 
rough, and any baiKe for the time being of any borough of 
reality, or barony ; and these do not require the above men- 
tioned qualification in point of valued rent^. 

* The provision was enforced in the cane of Gordon r. Forbes, I2th Fe- 
bruary 1766; Fol Diet. iii. 410. 

* Hay V. Hepburn, 26th July 1736 ; FoL Diet 

' Oordon o. Anderson, Slst Jan. 1766 ; Fol. DicU iii 409 ; and Wight, 
p. 192. 

* Macadam v. Logan, 26th July 1776 ; Fac. In the Folio Dictionary, 
the meeting is said to have been adjourned from one day to another, and 
still only one penalty was inflicted. It is added, that a different dedrion 
was given in two preceding eases, 1766, C^ordon v, Forbes ; Id. o. For- 
■ytb. 

* Sinclair v. Dean of GuUd of Wick, Ac. 1st January 17«9 ; FoL Diet, 
iii. 410. 



COMMISSIONERS OF SUPPLY. 119 

By the later statutes naming commissioners, no one who 
has been an inspector or surveyor of assessed taxes, can act as 
a oommisskiner, although named. 

The statute 88th Greo. III. c. 6, and the previous Supply 
Acts, since the year 1748, direct those named to take the oaths 
of aUqplance and abjuration, and to subscribe the assurance. 
The question therefore arises, whether the proceedings of com- 
misncmers, who have neglected to take the oaths thus prescribe 
ed, are null ; or whether the only consequence is, that those 
thus neglecting to qualify are liable in the statutory penalty of 
L. 90. The act merely directs the commisnoners, before acting, 
to take the oaths, and does not dedare either that the proceed- 
ings of those not complying with the regulation shall be null, 
or, as is the case with respect to their qualification of valued 
rent, that none shall be * ci^Mble" of acting who do not qua- 
lify. Hence the true interpretation of the statute appears 
merely to be, that the penalty is incurred by neglecting the 
provifiion, but that the proceedings are not vitiated. This was 
the ccmstruction adopted by the Court, in the last reported 
case on the subject, after an inquiry into the practice in va- 
rious counties, from which it appeared that the regulation 
was very generally neglected ^ The same construction was 
also observed in an older decision^ ; although, in an interme- 
diate case, in 1751, the other interpretation was followed' ; 
but the recent occurrence of the rebellion has been supposed 
to have had some influence on the determination, and, at all 
events, the judgment was reprobated in the later case. 

The last mentioned acts name the day for the first meeting 
of the commissioners, and empower them to appoint the sub- 

> Campbell «. Macdowal, 20Ui Febniarj 1787, Fac ; and Supplement 
to Wi^t, p. 35. The point was^not ezpreaaly decided, because the case was 
determined on another ground ; but the Court took occasion to dellyer their 
opinions unanimously to the e£kct stated in the text. 

* Irvine e. Forbes, 1738 ; FoL Diet. L 163. 

> Sutherland o. tmd. 22d February 1751 ; £lch. M. P. 52; Fale. U. 
246. 



120 OF VALUCD RENT. 

sequent diets. The oonveiier also may call a goieral meeting* 
A jHivate meeting, not appointed in any of those ways, has no 
power to divide a valuation ^ The proceedings, however, at 
such a diet, become valid, if referred to, and homologated by 
a posterior regular meeting^ 

By the Scots act 1706, c. S, to which reference is made in 
the last mentionedacts, the commissioners are authorised to' 
appoint their convener,,^tioiifnitf io iimey that is, whenever a 
vacancy occurs ; and it has been decided that commissioners 
may remove their oonvoier at pleasure^. In one case, the 
Court fouttd that where there is no convener, a private com- 
missioner may call a meeting ^. Perhaps, however, the more 

* Abercromby v, Leslie, 2l8t February 1753 ; Fac. ; Id. Dec No. xli. 
Cuningham o. Stirling, 9th January 1754 ; Fac. 

* OunpbeU «. Stirlii^, 6th March 1754 ; Fac. Brodie o. Gordon, SSth 
July 1773 ; Wight, p. 194. Mr Wight, Ibid, however, mentions a dif- 
ferent decision, Hope Weir, March 1768. 

' Pulteney v. Gordon, tn/. 

* Pulteney «. Gordon, 24th December 1767; Fac The following opi- 
nioBs, not before published, from Lord Hailes* notes, were deHvered in 
this case:— . 

' Cookloun — Sir John Gordon was legally elected convener t he might i 
' however, be removed. This Court has no power to inquire into the 

* causes for which the commissioners removed him. The suspension 
« could not replace Sir John Gordon, although it displaced Braelangwell 
*• for the time. In such circumstances any commissioner could have cal- 
*' led a meeting jDTD re naUu 

* Jlfon&ocMbb— There have been extraordinary doings in this country, 
owing to the madness of elections ; votes have been created, commis- 

*' sioners of supply have been created. The commissioners had power to 

* depose Sir John Gordon. When they named Braelangwell, they must 
' have deposed Sir John Gordon. Here were two acts, the deposing of 
' Sir John, and the nomination of BraelangweU. The nomination of 

* Braebngwell was suspended, not the deposition of Sir John Gordon. 
^ The question comes to this. Whether may any one Commisnoner call a 

* meeting ? 

* HaUst^^^A case like the present one must have occurred, when the 

* convener was absent, or happened to die, at a time when an eztraordi- 
' nary meeting became necessary. I fear that the Bar will not be dispo* 

* sed to give us much aid in pointing out precedents. Perhaps the most 



COMMISSIONERS OF SUPPLY. 121 

ailviaaUe way is that which was adopted in a subsequent 
instance, in which an ap{dication having been made to the 
Court of Session, the Sheriff was empowered to call a meet- 
ing, at which the commissioners were authorised to choose 
a convener, and proceed to business ; but the day named by 
the Sheriff having been too distant, the Lend Ordinary on the 
Bills, in vacation time, named an earlier day '. 

Although a meeting of commissioners stands regularly ad- 
journed to a particular day, the convener may, notwithstand- 
ing, upon the application of any having interest in the matter 
for which the adjournment was made, call a general meeting 
on an earlier day'. 

The provisions with respect to the quorum of Commission- 

*' proper method of caLUng a meeting would have been, in coniequenoe of 
' an application to the Sheriff, whose dutj it is to put the Commissioners 

* of Supply in motion. At the same time I should think it hard to annul 
*■ the whole proceedings of this meeting, which was numerous, and maj 

* be said to have acted bona JIde. Sir John, indeed, did not summon the 
' meettng Umquam gmHieiy but in the character of convener, which did not 
*• belong to him. This fidse designation, however, is not sufficient to an- 
*■ nul the proceedings of the Commisaoners, when met. Had the adjourned 
*• meeting indicted by Braelangweirs party been to some day before the 
< Michaelmas head court, I should have thought that the meeting called 

* by Sir John would have had less the appearance of iona/Uu, But it is 

* to be observed that the commisrioners had a4Jounied to a day after the 

* Michaelmas meeting. This had the appearance of an attempt to prevent 
' that division of valuation, to which Sir John Gordon and his friends 
' were just as well entitled as Mr Pultney and his friends. 

^ iSiUodr.— Any commissioner n»y, ejr necemtaie, call a meeting, and any 

* commissioner does in fact call such meeting.* 

' On the ISth December 17079 the Lords assoilzied from the reduction, 

* in so &r as respected the alleged illegality of the meeting ; and, on the 
' 24th December * adhered.* But they reduced the division made, in re- 
*• spect that Glenurquhart ought to have had a share of the division of St 
' Martinis.* 

^ HogofNewli8t<m, lUh March 1768; Wight, p. 194. In the Fol. 
Diet, it is said, that in this case the Court authorised the last convener to 
call a meeting ; voL iii.^p. 410. 

* Gordon v. Grant, 14th December 1756 ; Fac 



laa OF VALUED RENT. 

en of the Scottish Su[^y AcU, erf the year 1690, and of the 
preceding yean, which are referred to in general terms, in sub- 
sequent acts, are variously expressed. In practice the com- 
missionen act as if no particular quorum were necessary. In 
one ot two casesS the Court of Session named five as the 
number who should meet*. 

The form of application to the commissionen to have a 
valuation divided, is by petitioo. A. proof is then led by a 
committee of commissionen ; a scheme of diviaon is rqport- 
ed by them to a general meeting, who approve of it, if correct, 
and iqipcnnt the divisbn to be made in the cess-books^. 

Although a variety of parties have a direct interest in a 
process of division, it is not held to be essential to call all 
those thus intafested. Tenants, although taken bound to pay 
the whole or a part of the land-tax, need not be called ^. 
And, where a vassal holding certain lands of a subject supe- 
rior, valued in cumtUo with other lands held of the crown, 
had obtained a division of the valuaticm, without calling the 
subject-superior, the latter failed in an attempt to reduce this 
division, although he insisted that as freehdids ware now a 
valuable kind of property, he ought to have been made a 
party^. Every actual proprietor of land valued in cumuhy 
the land-tax of which has not been redeemed, has of course a 
direct and material interest in the divinon of this valuation. 
Freeholden at large, however, or Commissionen of Supply, 
have no title to urge as an objection to a division at the ir^ 

^ Earl Panmure v. CommlationerB (ji Supply of Forfiunj^iue, 15th No- 
vember 1760 ; FoL Diet iii. 411. Stephen v. Abereromby, Slat June 
1774, Ibid. Brown «. Hamilton, 6th December 1780, lUd. ; sad Fac 

* This is the number mentioned in die act 1640 ; Mr Thomson's Acts, 
vol vi. p. 496. In the Faculty Report of the case of Campbdl th Mae- 
dowal, 20th February 1787, it is said that the Court sssaMrf to be of opi- 
nion that five were not neoesaary. See the Notes of the OplnloDa of the 
Judges, by Lord Hailes. See also Lord Kamea* Statute Law 
p. 441, et Hq* 

3 BeU's Election Law, p. 810. * Wight, p. 106. 

^ Earl of Home o. BloomfieU, 24th July 1760 ; Fac. 



WHAT SUBJECTS VALUED. 128 

Stance of the superior, that the vassals have not been calked, 
unless the objectors can shew that the division is materiallj er- 
roneous ^ 

In dividing valuations, it becomes of importance to ascer- 
tain what subjects were valued by the commissioners, under 
the early acts. In considering this subject we shall have an 
opportunity of seeing what subjects, besides lands, when va- 
lued, are capable of affording a right to vote. 

The instructions whidi were given to the original commis- 
sioners were expressed in very comprehensive terms. Thus, 
in the act of convention 1648, directions were given to ascer- 
tain the true worth of the rents * to landward, as w^U of 
^ lands and trinds, as of any other thing, whereby zeirlie prof- 
< feit and oommoditie aryseth '.^ In the statute 1649, the ob- 
jects of valuation are stated to be ' money-rent,^ ^ victual,^ ca- 

* sual rent^ for < salt, coal ^, salmond-fishing, and other fish- 

* ings in properties whereby there is yeirly benefit^\ &c. ; 
and, in 1667, the commisaoners are directed * to consider 
^ the valuationes of all lands, teynds, and other reall estate^/ 

Mills c^rtidnly were valued in some instances ; but it ra- 
ther aj^ars that this practice was not universal^. When 
valued, there can be no doubt that they affi>rd a qualification. 
The titles of the claimant, however, must be so broad as, 
in the whole circumstances, to shew that he has right to the 
mill. Whether a disposition of lands carries a mill which is 
not specially mentioned, is a quasHo vohmktHs "^ ; and, in a 

* Montgomery Cunningham v. Hamilton, 6th December 1780; Fol. 
Diet iii 409 ; Wight, 196. 

* Mr ThomMn*B Acts, vol. vi p. 30, 16th August. 

' By a suboequent act, however, in 1681, it is declared, * that coal 

* and salt is not to bear any part of the supplie, providing always that the 
*• total €i the shire be keeped entire, without any diminution.* 

^ Ibid. voL vi p. 496 and 498, 4th August. 

* Ibid. voL vii. p. 545, 23d January. 

* See Wight, p. 199. 

' Erskine, b. ii. tit. 6. sect 5. 



124 OP VALUED RENT. 

case of this kind, the Court was of opinion, that, if it appear- 
ed to have been the intention of the disponer to convey the 
mill along with the lands, provided it had not been establish- 
ed as a separate and distinct tenement before, a general dis- 
position would carry it as part and pertinent ; and dedded 
that such a title did carry a mill \ It would seem, that, in 
one case, the Court, in considering the question whether a mill 
had probably formed part of a valuation or not, went into the 
distinction that mills enjoying a right of thirlage, as thus pos- 
sesdng a constant value, had probably been taken into ac- 
count, whilst those supported only by voluntary customers 
were probably excluded, as their rent must have been of a 
precarious nature*. In this case, the Court thought that a 
part of the valuation of certain lands had arisen from the 
mill ; and as the claimant had no right to this latter subject, 
his valuation fell below the requisite amount '. 

Fishings of various descriptions hav^ been valued, and 
have been sustained as the basis of a freehold qualification. 
Salmon fishings are specially mentioned in the act 1649) al- 
ready quoted. In one case, a cliumant had right to lands of 
a certain valuation, and likewise to two half-nets salmon fish- 
ing, also valued, and unconnected with any lands belonging 
to the claimant ; and it was found that the fishing might be 
taken into account, in making up the requisite amount \ In 
another case, a claim was rested partly on a right of white 
fishing in the sea, attached to a small fishing station, consisU 
ing of houses, yards, &c. for the whole of which, and not 
merely for the right of fishing, it was stated that the tenant 
paid rent. The subject was called the Boats of Doun, and 
was valued in the cess-books at upwards of L. 46. It was 
held to be a proper subject to give a right to vote *. Oyster 

^ Rose V. Ramsay, 1 7th June 1777 ; Fac. 

« Abercromby r. Gordon, 10th August 1773 ; Wight, p. 200. 

s Bell, p. 60. 

* Freeholders of Aberdeenshire v. Fordyce, lOtb July 1745 ; Falc 

* Gordon v. Duff, 7th August 1773 ; Fac. ; Bell, p. 62 ; Wight, p. 199. 



FEU-DUTIES. 125 

and mussel fishings, of which exclusive rights are granted by 
the sovareign, were also undoubtedly valued by the commis- 
sioners \ and are lit subjects to be the basis of a qualification. 
With respect to the question, Whether, in the division of 
a cumulo valuation, any part of it ought to be allotted to feu- 
duties payable to the supericN*, it is stated by Mr Wi^t*, 
that, ' if the cumulo comprehends lands that were feued out 

* before the general valuation, a part ought regularly to be 
^ allotted to the feu-duties payable for such lands, and the re- 
^ mainder upon all the property land. But no instance can 

* be given of allotting any part of a cumulo to feu-duties, 
^ where the feus have been granted since the general valua- 

* tion.' 

With respect to the rule here laid down as to lands feued 
out before the general valuation, it may be observed, that 
some doubt occurs as to its application, from the nature of 
the directions given to the commissioners by the acts 1643 
and 1649, upon the supposition that these directions were ad- 
hered to. The former of those acts directs that rolls shall be 
made for each person^s rents, * deducing off the saids rentis 
^ and commodities what is payit furth yr^off to ministeres, 
^ schoolmasters, superiors, taksroen, lyverenteres, coUeidges, 
^ and (hospitals) ; whilk deductiounes (aff) the said ly veren- 

* ters, takismen, and superiors, shall be chargeit upon the 

* said ly verenters, taksmen, and superiors, by articles apairt, 
^ to^dder with any (other) rent, if any they have within the 
^ said paroshe/ Hence, by the directions of this clause, feu- 
duties, at least those payable to subject superiors, were to be 
deducted and charged on the superiors ; and if we suppose 
that these directions were observed, such feu-duties could not 
have entered any cumulo with the lands themselves, and con- 
sequently ought not to receive a share of that cumulo when 
nowdivided. These feu-duties might, however, enter a cumulo 
composed of the superior's lands, and other sources of profit ; 

^ Wight, p, 199. • Page 200. 



136 OF VALUED RENT. 

and, where this appeared to have been the case, would be 
entitled, in dividing such a cumulo, to their share of the valu- 
ation ^ Again, the act 1649 instructs the commissicNiers to 
state the value ' of all feu-duties or tak*4ttties payable to any 
^ person, his Majesty^s duties excepted ;' and they are ordered 
to prepare a roll for every parish, which is to cmsist of va- 
rious $epaaraJU articles, and, amongst others, o^ ^ fifUily, the 
*■ feu and tak-dudes, his Majeetie^s excepted, and what the 
^ same doth amount to ;^ and, ' seventhly, the duties paid to 
^ his Majestie's Exchequer, and the sum thereof.^ 

Whare cess b levied from feu-duties, although it is the 
superior or any third party who has obtained right to such 
feu-duties, who immediately pays the cess, still it is the lands 
which in reality bear tlie burden of this cess ; because it is 
out of the feu-duties that the superior or third party pays 
this land-tax. Now, the act 1681 bears, that every one is 
entitled to vote who ' stands infeft in lands liable in public 
* burdens for his' Majesty^s supplies for L. 400 of valued 
^ rent,^ hdkling of the crown. It is not said that the claim- 
ant must necessarily pay the whole or any part of these bur* 
dens. It is enough that the 2afid!« pay them ; and, acooid- 
ingly, a superior is entitled to vote on the lands which are 
held under him, although the whole kA the cess may be paid 
by his vassal. Hence, where a subject had obtained a gift 
from the crown of the feu-duties of certain crown-lands in 
Orkney, and these duties and the lands were afterwards re^ 
spectively valued in 165S, the proprietor of the lands, who 
was the true crown vassal, was found entitled, on claiming t0 
be enrolled, to add to their valuation that of the feu^utie» 

* From an analysis which I have seen of the old valuation of'Selkirir- 
ahire, of the year 164S, it appean that the eonunifldoDen in that eoonty 
proceeded iqKm principles conformable to a consideiable extttit with ths 
directions of the act 1643. The feu-duties and teinds are frequently de* 
ducted from the valuatidn of the lands. Sometimes, but not often, feu- 
duties are entered as separate articles ; and even when this is not the 
case, their amount is stated as often as they are deducted, although not 
stated as separate articles. 



FEU-DUTIES. 127 

paid out of his lands to a third party, who had right to them 
as being in the place of the king^s original donatary ^ As 
the whole cess was ultimately paid out of the lands, it was 
thought to be of no consequence in what manner it was divid- 
ed amongst those who were immediately liable for it. The 
same principle was recognised in a subsequent decision'. It 
follows ajbrtiorij that, if the feu-duties payable to a superior 
from lands held under him, were valued, and the cess paid 
by him for those feu-duties, he would be entit^f^l to add that 
valuation to the valued rent of the lands in making up a qua- 
lification. His right to vote would still be entirely founded 
on the lands held under him, because the cess which he 
would pay for the feu-duties woulu ultimately be derived 
from the lands. 

But although the valuation of feu-duties may thus be taken 
into account in making a claim for enrolment on lands, a qua- 
lification cannot be rested ^ther in whole or in part on feu- 
duties, where the claimant is not proprietor of the lands out of 
which those duties are payable. Questions of this kind have 
originated from the proceedings which took place at the Refor- 
mation, and subsequently to it, relative to church property. A 
considerable part of those lands which, on the abolition of po- 
pery, were forfeited to the crown, were erected into temporal 
lordships in favour of certain individuals, who were called 
Lords of Erection. After the general annexation to the 
crown in the year 1587 of church property, with the excep- 
tion of erected benefices named in the act, Charles I. thought 
proper to institute reductions of those erections; and the 
matter was afterwards compromised by the Lords of Erection 
surrendering their superiorities into the hands of the King, 
they being allowed to retain the feu-duties. The vassals of 
these lords thus became crown vassals, whilst the interest of 
the former superiors was reduced to a mere right to draw the 

1 Fredidden of Oricnej v. Tndl, S3d Febrttarr 1791 ; Bell, p. 68 ; Fm. 
* EnUiie o. Okiferd, 18th January 1812. 

1 



128 OF VALUED EENT. 

feu-duties. In these circumstances, a claim of enrolment ha- 
ving been made, partly upon certmn lands, and partly on 
certain feu-duties, of the nature just described, payable out of 
other lands, and valued in the cess-books, it was found that 
feu-duties, in this situation, were not such a subject as gave 
a right to vote \ A similar deciiuon was given in a later 
case^ 

' All the original Supply Acts expressly mention tdnds as a 
subject of valuation ; hence it cannot well be doubted they 
were taken into account. When drawn by a titular, they 
were sometimes, if not always, valued apart. In like manner, 
when let, the tack-duties payable to' the titular were valued 
apart ; and the remainder of the teind was valued in cufnulo 
with the stock upon the vassal '. 

The questions respecting the right to found on valuations 
of teinds, in making up qualifications, are of considerable 
difficulty. Where lands have been valued without distin- 
guishing between stock and teind, the heritor or superior is 
entitled to fouhd on the whole valuation of the lands, al- 
though he has no heritable right to his teinds. This was 

^ Campbell v. eund, \^ik January 1755 ; Fat. There la a note written 
on the Seaiion Papers of Lord Kamea, presented bj hla Lordahip to the 
Advocates* librazy, as illustrative of hia ^ Select Deciaiona,'* which ia 
well worthy of being transcribed. It ia aa foUowa : *■ To vote, one 
' must be infeft in auperiority or property. The lord of erection, or 
*• hia aasigney, having right to the feu-duties, is infeft in neither. Feu- 
^ duties are not the subject of feudal holding. It is only the reddendo 
*■ of a feudal holding. The lord of erection is in the same caae aa if 
' he had an aasignation from the crown to the feu^duties ; therefore 
' he is not the long's vassal, but the king's aasigney. If SQ,»tlie lord of 
* erection holds not this subject in superiority, because he has no vassal. 
' He holds it not in property, because he haa no superior.' In the report 
of this caae, however, by Lord Kames (Sel. Deda.), it aeema to be errone^ 
ously stated that the qualification was rested on the valuation of the lands 
out of which the feu^uties were payable. From the Faculty Beport and 
the Session Papers, it appears thai the feu-duties themsdves were valued. 

* Boyces «. Hamilton, 21st Beoember 1780; Wight, p. 20$. 

> See the case of Gordon, ad March 17ft3, as xeported at length by 
Lord JEUchies in |us second yolume, p. 275. 



T£INDS. 129 

« 

hdd in a caae where the bishop, who had right to the teinds 
of certain lands, had let those trinds to the proprietor of the 
lands, who subset them to the same person to whom he feued 
the lands, and where, besides a separate valuation of the teind 
tack-duties, the lands were valued, without distinguishii^ be- 
tween stock and teind, but, as the Court thought, taking the 
remainder of the teinds^ after deducting the tack^uUes, into 
account The claim of enrolment was made by parties de- 
riving right to the superiority by progress from the person 
who had feued the lands ; and although neither they nor their 
vassal had any heritable right to the teinds, the Court thought 
that the lands were, as the act requires, liable in public bur- 
dens to the requisite extent ^ 

Where teinds have been separately valued, and the pro- 
prietor of the lands from which they are levied has acquired 
an heritable right to them, he is entitled to found on the va« 
luation of those t^ds in conjunction with that of his lands \ 
This still leaves the question open, whether a claimant 
would be entitled to rest a qualification solely upon teinds 
out of another person^s lands, and separately valued, because 
the preceding rule may be supported on the ground that 
teinds being a burden on the subject from which they are 
drawn, the lands are the true basis of the qualification, and 
the whole cess is truly paid out of them, although a part of 
it is nominally laid on the teinds. Mr Wight is of opinion 
that the teinds of another person'^s lands, separately valued 
would afford a qualification as much as fishings^; although 
it is to be recollected, that feu-duties payable out of the lands 
of another have not been held a proper basis for a vote, and 
that teinds are regarded as a burden or servitude affecting 
lands \ whereas fishings constitute a distinct estate. Even on 

* OoT^u «• Freefaolden of Caithness, 2d March 17^ ; £lch. M. P. 5?. 

* Dunhar v. Sfaidair, 29th January 1745 ; Falc, i 61 ; Elch. M. P. 27. 
' Page 202. 

« Stair, b. IL tit. a Mdoi Enkine, b. ii tit. 10. sect. 1. 



130 OF VALUED BKNT. 

Mr Wight's view, it would follow that. feiidai tkle by char- 
ter and aaaiiie must be shewn to die teinda by the person who 
chums on them. A patron, whose right to tmds flows ea* l^r 
would not be entitled to claim on them, because he is not n^ft 
in terms of the act 1681. If it shall be held that the teinds 
of another person-'s land a£Pord a quaUficabon, when held of 
the crown by charter and sasine, then it will foUow of course 
that no proprietor of lands can found on the valuation of his^ 
teinds, where another holds them of the crown by charter and 
sasine; because that other will be entitled to found upon 
them in making up a qualification. But, when no third 
party can shew sudi a feudal title to the teinds of lands, the 
proprietor of those lands ought parhaps to be entitled u> 
found on the separcUe valuaUon of those teinds, although he 
himself has no heritable right to them, and although another 
may actually draw them, on a principle similar to that whicli 
entitles a proprietor to found on the separate valuation of 
feu-duties drawn by another from his lands. The following 
case occurred, under special circumstances. Certain lands^ 
and the teinds of those lands, had been separately valued ; 
and in a subsequent division in 1707, the two valuations had 
been thrown together, and then divided among certain par- 
oeb of those lands, the valuation bong nomiaaUy put on the 
lands only. The superior of one of those parcek claimed to 
be enrolled, but could produce no iofefbttent in the teinds of 
his lands, although he maintained that they were carried 
by the expressions parts and pertinents in his titles, especially 
as his vassal was property vested in the teinds. He alao ar- 
gued that the old valuation had been derelinquished tor move 
than eighty years. It is uncertain upon which of the various 
grounds which this state of facts might suggest, the Court 
sustained the qualification ^ 

^ Edmonstone v. Morehead, 9th December 1790; Bell, p. 63 ; Supple- 
ment to Wight, p. 56 ; aflirmed on appeal, 28th February 1791 > see also 
the printed papers on appeaL 



BURGAGE LANDS. RULE. OF DIVISION. ISl 

It thus appears that various subjects besides lands entered 
into.tb^ va^pations of the Commissicmers of Supply, some of 
wUch w^ ciq)fible of o^ording qiialifications. With reqpect 
to lands lliiQinselYea, llie general rule is, that every description 
of thai subject, in whatever situation it may now be, or may 
have been in lime past, provided it holds of the King, and is 
of the requisite valuation, will afford a vote. Church-lands 
ace expcessly mentioned in the act 1681. Lands also, which 
had been mortified to a college, and held by it of the king 
lor the re ddendo of prayers and supphcalions, and were then 
ali e nated by the college, were found to be a proper founda- 
CioD fiir a vole ^. There is an exception, however, in the 
case of lands held of the crown by burgage tenure : these 
ooostitnte a part of the patnmony of the burgh which is re- 
presented by its own member, and are incapable of affording 
a qualification for the representative of a county. This is 
tlie <irdinary rule ; but questions may occur as to the compe- 
tency of the evidence by which the nature of the tenure is 
proposed to be established. These questions have been al- 
ready adverted to^ 

Wtlh respect to the mode in which the commissioners must 
firtimatip the value of lands in dividing a cumulo valuation, 
the general rule is, that the real rents at the time of divinon 
mmt be ascertained ^. The real rents must be d^ly ascer- 
tained by proof. Where two claimants were infeft, each in 
the hoffoi certain lands, it was held not to be enough for the 
cnmniiwpnyrs to tak^ it for granted that each half was of 
equal Talue, without leading any proof, as to the real rents, 
and to divide the cumuk> upon that assumption^. In a case 

* Dslryiople, die v. Reulf 4th March 1765 ; Fac. wpra, p. 58. 

* 5b9«a» p-dd- "" Wight, p. 197. 

* Duff r. Ahercromb/, lOth Feterusi? 1807 ; Fac N^ of opMhn qf 
Loird PraidmU Campbell^ fmm hU Session Papers.^^ Half of a superiority 
^ pro mdinww Division abBolutety Decesaary, and not easily accomplished in 
' dtiai caie» as the total is precisely L. 800, and not a fraction more or less 

l2 



182 OF VALUED RENT. 

in which lands hod been let on a nineteen yeanT lease, for a 
rent of L. 32, and a grassum of L. 100, it was found to be 
no objection to the qualification rested on these lands, that the 
commissioners, in estimating the rents, had paid no attention 
to the grassum, as it was urged, amongst other arguments, 
that the effect of taking the grassum into account would have 
been to increase the valuation '. 

If there has bem a use of payment of cess in particular pro^* 
portions for a term of years; the commissioners, upon a 
proof of this, may adopt it as the rule in making the divi- 
sion ^. This rule of division evidently has a connderable ad- 
vantage over that of the real rents ; because, as the object 
ought to be to ascertain the portions of a cumulo as nearly a» 
possible, in the same manner that they were estimated in the 
original valuation, the presumption is, that the cess has beea 
paid according to the real value at the time when such pay* 
ments commenced ; and thus we approximate more nearly to 
the rule of the first valuation. 

Although, by the original land-tax acts, the commissioners* 
had power to correct former valuations, where erroneous, such 
a power would be quite absurd at present, because no evi. 
dence could now be obtained, acoordmg to which the accu- 
racy of an old valuation could be estimated. Hence the 

t o be sUo^ed on either side. L. 400 is ceitainly the oneJislf of I* aOOi 
But sajing this is nothing at all, unless the lands are divided into twi> 
distinct parcels, and these precisely equal in point of value, i «. real 
yearly rent, — measuring the extent of ground, and giving the same 
number of acres and roods, &c to each,— will not do ; for the east half 
may be veiy inferior in value to the west, and vice mpm. Suppose two 
heirs-portionera, and the mansionJiouae lies to the east, the ground to 
the east must be laid off to the eldest, and to the other heir the west half ^ 
but this is only advancing one step. The actual divinon still remains 
to be made. No actual division here at all ; and therefore the dedsiona 
quoted don*t apply. — Query as to entail and multiplication of superiora. 
—Case of Gifien in Ayrshire.* 

' Boyd e. Abercromby, lOth August 1774: Fac. 

* Galbndth e. Cuniogham, 17th January 17^; Fac. Campbell o. 
Campbell, eod, die. ; Fac 



THROWING VALUATIONS TOGETHER. 138 

power of the commissioners at the present day is limi- 
ted to that of dividing cumulos ; in the exercise of which 
they are not entitled either to increase or to diminish the 
amount of any existing valuation attached to any particular 
subject, whether that valuation be an original one, or the re- 
sult of some after division. They are not entitled to throw 
together valuations, standing separately in the valuation rolls 
or cess books, into a new cumulo, and then again divide this 
cumulo, increasing the value of some of the parts beyond 
their former estimate, and diminishing that of others. In a 
variety of cases qualifications have been found bad, where the 
valuation of the lands on which the claim was made had been 
increased, in consequence of such an operation ^ And this 
was held in two of these cases ', although, in entries in the cess- 
books subsequent to the original valuation, but many years 
prior to the objectionable division, the originally separate values 
had been united in one cumulo; because, in such a case, there 
is no actual change on the amount of the first estimate, until 
the division assigning a different proportion takes place ; aud 
as long as the whole is in the hands of one proprietor, there is 
no interest to challenge the proceeding, and tiierefore no room 
for the plea of acquiescence. On the other hand, where, in 
consequence oi the objectionable operation of the commis- 
sioners, the value of any of the subjects has been diminished 
below its original estimation, although the proceeding is in- 
ocxrect in itself, still, as the qualification of the claimant on 
such subject is in fact made to appear less in point of valua- 
tion than it really is, the claim will be sustained, although the 
erroneous valuation is founded upon in evidence of the valua- 
tion, provided the true valuation is made apparent. This 
was held in the same circumstances which gave rise to one of 

^ «Soott V. Trotter, 19th January 1781 ; Cunningham v. Maxwell, 20th 
February 1787 ; Bojes v. Freeholders of Renfrewshire, 16th February 
1787 ; all detailed in Supp^ment.to Wight, p. 43, et teq. 

* Those of Scott and of Cunninghame. 



134 OF VALUED RENT. 

the cases already alluded to, where, by one judgment, the 
Court sustained the qualification on the lands which had been 
rated at less than the original valuation ^, whilst, by another, 
ihey found the vote not good which was founded on the sub- 
ject which had been overvalued '. 

It has sometimes happened that parties have entered itlto 
private contracts of division of their valued rent, ' and have 
obtained the approval by the commissioners 6f such divisions, 
without the leading of any proof. In two instances, both 
which appear to have come into Court by complaints,"and 
where the private arrangement did not appear to be liable to 
any suspicion of improper design, the Court of Seission re- 
fused to' inquire into the grounds of the division ^ In a late 
case, where it was objected to a decree of division that it had 
proceeded without proof, and bore ex fade to have been 
made of consent df parties, it was answered, that public bur- 
dens had been paid for many years prior to the division, on 
the prindples recognised in it, which were not now alleged 
to be incorrect, and that, as it was ex Jhcie regular, it could 
only be challenged by reduction. The Court held that the 
objection was incompetent, at least by way of exception ^. 

Trivial errors occurring in divisions, which cannot have the 
effect of creating a greater number of freeholds than the to^ 
tal cumulo valuation affords, are not held to constitute &tal 
objections ^. In such circumstances no one can be said to suf- 
fer from the mistake. In one case, where the rent of a garden 
and orchard, amounting to about two acres, had not been ta- 
ken into account, and where the claimants had enough left, 

^ Scott V, Elliot, 17th January 1781 ; Sup. to Wight, p. 48. 
* Scott ». Trotter ; Supfu. 

» Lord Drummore, 26th February 1745; Elch. M. P. 37; Stewart 
and others «. Maxwell, 2d March 1754; Elch. vol. iL M. P. 69; Bell, 

p. 199. 
^ Denniston v. Campbell, 7th July 1824 ; Sliaw and Fac. 
» Wight, p. 198. 



TRIVIAL EliRORS. ACQUIESCENCE. 135 

After making allowance for this omission, the qualifications 
were sastained ^ The same rule was even followed in a case 
where, if the error had been i^egarded, one of two freeholders 
would not have had enough left. In this instance a gentle- 
man had valuation to the extent of L. 800 Scots, and was 
himself enrolled on a cumulo of L. 428 : 17 : 8^. Wishing 
to convey a liferent qualification to another, he applied to the 
<»mmis8ioners to divide this cumulo, so that along with the rest 
of his valuation, he might be able to convey a sufiident qua- 
lification to the other person, and at the same time retain 
enough himself. The cumulo of L. 423 : 17 : 8^ was accord- 
ingly divided into two portions of L. 400, and L. 23 : 17 : 8^ ; 
but it was ascertained that 7s. 7d. too much had been 
given to the larger portion, and 7s. 7d. too little to the smaller. 
The Court, however, overlooked this error, and sustained both 
quatificadons^. 

Where errors of such magnitude have been committed in 
divisions, as would, if brought forward in due time, have 
proved fatal to the decrees, parties have, by long acquiescence, 
been held barred from afterwards stating objections founded 
on those errors. The fact inferring acquiescence has usually 
been payment of cess conformably to the erroneous division, 
although other circumstances have also occasionally led to the 
same result. It is not requisite that this acquiescence shall 
have taken place for so long a period as the years of the long 
prescription of forty years, and the shorter periods which have 
been held sufficient have varied in difierent cases. The er- 
rors which had occurred in the divisions have also varied. 
In one case, where it was alleged, that, in dividing a cumulo, 
the commissioners had omitted giving any part to certain lands 
and a mill, which were included in the subject of the cumulo, 

^ Grant tr. Earl of Fife, as decided in the Hous^ of I^ords, 1 1th March 
1773, reversing a judgment of the Court of Session of 81st July 1772; 
Fac. 

^ Gordon o. Fairie and Falconer, 11th March 1819 ; Fac. 



36 OF VALUKJ) RENT. 

it was held that payment of oeas on the footing of the division 
for twenty yean, was sufficient to bar challenge ^ In ano^ 
ther case', where, in dividing a cumulo of L. 680 : S : 2, L. 21 
168. 4d. had been allotted to one of the parcels of land be« 
ymid its due proportion, acquiescence {or twenty years, by 
paying the land-tax on thb footing, was found to exclude ob- 
jection ^ In three cases where the error consisted in having 
thrown together separate valuati(ms into one cumulo« and in 
having them divided of new ; payment of the land-tax, ac- 
cording to the new divitaon for twelve years, was held, in 
the first of these instances', by a judgment of the House 
of Lords, reversing a contrary decision of the Court of Ses- 
sion, to infer acquiescence, and to bar challenge ; in the se- 
cond ^ instance, a similar payment for sixteen years ; and in 
the third instance \ long silence during thirty-seven years, 
and acquiescence in previous enrQlments, in virtue of the di- 
vision, the land-tax having been paid by one person for the 
whole lands, were held in the Court of Session to exclude 
challenge. 

In evidence of the valued rent of an estate, on which a vote 
is claimed^ it is not necessary that the cess-books them* 
selves, or extracts from them, shall be produced to the meet- 
ing of freeholders ; all that is required is a certificate under 
the hands of two Commissioners of Supply, and of the clerk ^. 
This evidence, however, may be disproved by the books them- 
selves, with which it is necessary that the certificate should *- 
gree^. 

' Earl of Fife and Others v, Duke of Gordon and Others, 16th June 
4774 ; Fac. 

* Feigumn o. SfaMr Stewart, SSth July 1780 ; Wi|^t, p. Ml. 

^ Douglas and Milne o. Elphinston 1708$ Sup. to Wl^t, p. 48. 

* Blackwell v. Smith, 4th July 18S2 ; Shaw. 

^ Campbell v. Spears, 14th December 1780 ; affirmed on Appeal. 

^ Campbell and Graham v. Muir, 5th Feb. 1760 ; Fac ; Wight, jk 801. 

' Wight, p, 201. 



UNDIVIDED VALUATIONS. 187 

The certificate must shew a separate valuation attached to 
the lands upon which the vote is claimed. A pro indiviso 
right in the half of an estate having an undivided cumulo 
valuation, will not afford a qualification K Such a right, in- 
deed, cannot even be made capable of giving a vote by divi* 
«on of the valuation, because BLpro indiviso right is incapa- 
Ue in its own nature of affording a vote; and because 
the process ci division of the valuation cannot take place un- 
til the lands thonselves have been divided, so as to ascertmn 
the parts of the estate to which the portions of the cumulo 
valuation are to be attached. Hence, a person being iofefl in 
certain lands held of the Crown, and possessed in such a way 
that they could not be distin^ished from certain other lands, 
having a similar name and description, holding of the Prince, 
and in possession of the same vassal ; a division of the cumulo 
value of these lands, proceeding on their respective valuations 
of extent, was held inept, as the subjects to which the portions 
of the valued rent were respectively attached had not been se- 
parately asoertfuned ^ 

In a ease where, ex fade of the titles, two persons appear- 
ed to be infeft each in a certmn specific half of an estate, al- 
though it appeared^ that, in point of fact, no divi^on of the 
property had been made, and where the whole estate was 
rated at an undivided cumulo of L. 800 ; one of these persons 
claiming to be enrolled was found to have no sufficient qua- 
lification^. The same judgment would have followed, even 
if the estate had actually been divided into the two halves 
mentioned in the titles, because, until the commissioners lead 
a proof of the real rents, and actually divide the cumulo, 
there is no evidence that (xie of the parts may not be more 

^ Stewart and Cunningham v. Pollock, 6th March 1760 ; Fac. 

* Gihaon o. Andenon, 29th June 1819 ; Fac. 

* Duflf; 6th December 1800, mentioned in Duff v. Abercromby, 10th 
February 1807 ; Fac. 



188 OF VALUED RENT. 

ValtldUe than the other, and entitled to a greater «h«re of the 
cuhialo. 

Although the ^neral rale is, that every subject on which 
a vote 18 clafined must be separcsUhf rated in the cesB-books 
as of the necessary valuation, still it does not Mlow, that, 
ifYien a person, possessed of a considerable vahnrtion, disposes 
of a stdalt portion, which clearly will be very far from reducing 
it below the requisite amount, such an alienation will destroy 
his qualification,' although no new division is obtained. Thus, 
where a person stood on the roll on a valuation of no less 
than L. 1761 ; 11 : % the sale of ninety-eight acres was held not 
to vitiate his qualification^. Sometimes small portions of 
ginMnid are exchanged amongst conterminous proprietors, 
for the purpoi^ of straighting marches. Such alterations will 
taot aflect the valuations of these proprietors \ This prindple 
was lield in a case in which so much as forty acres had been 
given away, and another piece of land had been received in 
return '. In another case, v^here it was objected, that, out of 
lands extending to L. 157 of real rent, L. 40 had been con- 
veyed ftway, the answer was sustained, that ahhoiigfa, in the 
decreet of diviaon, the valued rent of the whole lot was men- 
tioned, there was at'the same time stated the real rent of eneh 
article compotfAg the lot, from which, by a 'simple aridnnefieal 
calculation, th€f valued rent of any pacrt of the property- might 
be ascertained ^ 

•The general rdle is, that, ^bere there has been a cumulo va- 
ludtion, and it is intended to fbutid a qualification on a part of 
that cuttl^y the actual decree of divi»on ought to appear in tfae 
eefis4)o6ks ; bOit itill, presumptive evidence, that a drviskm has 
taken plac^; wHt in e^n^ain circunfi^tanee^l)!! adikiitted. Thus, 
where particular lands included in a cumulo, appear after- 

1 Suttte 1768; Wigkt, p. 284. « Wight, p. 286. 

3 Skene v. Graham, 1768 ; Wight, •& 

* Scot and Kerr v, Elliot, 17th January 1781 ; id., p. 285, and Fac. 



REVIEW BY CDURT OF SESSION. 139 

waitb aepttratdy entered in the <Ji»s-b0ok8 as of a certain valu- 
adoo^ and there has been a use'df^yineiit d[ cess, cdnferm- 

• 

able to the separate entry, It will be pi^atnied that a dividon 
hm taken place, although no evidence is now to be fodnd of 
it, and a claim of i^nrolment will be sustained on such presutnp- 
tive eridence ^ The act 1681, indeed, does not poiifit out 
any pardcull^ evidence of valued rent as being necessary ; 
but taoerely provides that the claimant shall be infeft ^ in lands 
^ laMein public burdens, for his msljestie'^ supplies for L. 400 
^ of valued rent^ 

Tile numerous ettors which we have seeh occurring in the 
proeeedisgsof the Comthisaoners of Sdpply, pliunly show the 
necessity that these proceedings should be subject to the re- 
view of the supreme civil tribunal. It would be unjust that 
oae nug^t be derived, by such errors, hot only of an import- 
ant political privil^e, but also of a vkluable patrimonial in- 
terest, resultk^ from the high price which is now attached to 
an elective qualification. This power of review becomes the 
more necessarv* when it is considered, that fbe divisions of va- 
lualioci made by these commissioners, regulate a variety of 
other civil rights, such as the appropriation of cdmmonties, the 
pttyiDMt of scfaoohaasters^ salaries, and other burdens. Not- 
-miduMnding these pd werf ul re^isons, the Cdtirt of Session were 
at €rBt averse from interfering in the matter. In a case in the 
year 1761 ^ which came before the Court both in the shape 
of a tatiiraary dftiifdkint against proceedings of freeholders, 
imd of a reduction 6t the sentence of the commissioners, 
vvhicfa had been prodiieed to the freeholders in evidence of 
tile vdualba, it was, 6o' the one hand, maintmned, that the 

^ Enkine r. Hope, 25th T*6bruary 1700 ; Fac ; Sup. to Wight, p. 39. 
N^ Jftm Afl SitiAm Paper* of Lord President Campbell: — * The use of 

* paytiieDt of cew for a long time conform to entries in collectors* books, 

* preitunes a regular division. See case of Trail' Ogilvey r. Carnegie, 
-ad Mardi 1796 ; Sup. to "Wight, p. 41. 

' Sutherland v. euwLy 8lh February 1751 ; £lch. M. P. 



140 OF VALUED RENT. 



Court of Sessbn had no power to interfere with the fiehtencc 
of a commissioa of Parliament, appointed to discharge an of- 
fice pecuHar to that commission, and, on the other hand, it was 
urged that the Court of Sessicm was the supreme civil tribu- 
nal in all civil cases. The Court, moved by the difficulty of 
the question, waved deciding it, and determined the case on a 
different point In another case ^, however, which came on 
a few days afterwards, in the shape of a complaint for refus- 
ing to enrol, the Court were reduced to the necessity of deter- 
mining the question, and decided that they had a jurisdic- 
tion in reviewing the proceedings of the Ccnnmissioners of 
Supply, and sustuned an objection to a divLuon, founded on 
errors which had occurred in it. 

The right of challenging decrees of division before the Court 

Session^ is competent not only to those who were parties to 
them, and are therefore directly interested, but also to the 
freeholders in general, whether in a complaint, or in a regular 
process of reduction, where the grounds of challenge are not 
such as can be competently discussed in the summary process ^- 

When the division of a cumulo has been made by a gene- 
ral meeting of the commisuoners, and the decree appears ex 
/acie regular, it can only be set aside in a process of reduction '. 

It has sometimes, however, been held that an exception 
to this rule exists, in so far as regards objections to decrees 
of divifflon, which objections appear firom any part of the 
books of supply. These, it has been maintained, may com- 
petently be urged by way of exception in a complaint. In 
one instance, indeed, the Court expressly proceeded on this 
principle. It was objected in a complaint, that the meeting 

' Gordon v. Gordon, 12th Febnuiy 1761 ; Elch. M. P. 

* Their title to pursue the process of reduction will be afterwards more 
iully considered, in treating of the common law jurisdiction of the Court 
of Session in election questbns. 

5 Wi^t, p. 185; Forrester w. Preston, 18th February 1756; Sup. to 
Wight, p. 2a 



WHEN REDUCTION NECESSARY. 141 

of the oommiflskynerB which had asoenained the valuation of a 
claimant, had been held in consequence of an adjournment 
from a previous mee^g, where only one of the five com- 
inJManers present had taken the oaths to Government This 
was an objection which, of course, could not appear ex facie 
of the decree challenged, but it must have been necessary to 
have recourse to the proceedings at the previous meeting, to 
prove that all the commisaoners had not duly qualified. 
The Court held, that, if the objection could be established by 
a reference to any part of the books, it might competently be 
made in a complaint ^. In one or two instances, also, the 
Court, in proceedings by complaint, gave e£Pect to the objec- 
tioo, that the commissioners had disregarded previous sepa^- 
rate valuations, and had divided cumulos on a different ratio, 
as if they had never before existed in a divided state ; and, in 
doing so, it would seem that the existence of the previous se- 
parate valuation could not have appeared ex Jbcie of the de- 
cree challenged, but must have been collected from previ- 
ous proceedings '. In these instances, however, it does not 
appear from the reports that any plea as to the incompetencgf 
of the objection was stated. In a subsequent case, where the 
cxmimisaoners, disregarding a previous division in 1740, had 
divided a cumulo of new in 1758, the question as to the com- 
petency of taking this objection into consideration, in a sum- 
mary process, was in the view of the Court ; but from the 

* Campbdl «. Macdowal, 90ih February 1787* The dediion on 
tbe poiiit mentioiied in the text, doeii not appear from the Facultj 
report of the caae ; but ia preaerved by Lord Hailea in his Notea^ yoL iL 
p. I025f aa followa: * SdtgrwM. If it appeara from the hooka of the com- 
miflrioiien vAa were qualified, and toAo not, the complaint ia competent. 
^^Bm^Ui. Whenever there ia need to have recourse to extraneoua dr- 
comatanoea, a reduction ia neceaaary, but not ao when the objection w^ 
pean from any part of the books.*-—* The Lorda found the complamt 
competeot.* 

s Soot «. Tiotter, 19th January 1781 ; Sup. to Wight, p. 43. Cunniafj^. 
hame n. Maxwell, 20th February 1787 ; <6. p. 46. 



14». Oy VALUED BE^^T. 



y^lidj.md thM the subsequent, diviuoa in 1758 had been ap- 
quio^^ Vi for tjtMrty.9eveiii yemi, the point was not tomuiiy 
decided ^ 

Iqaveryl«t^,^cft9e9 a.que^n.oocurred as to the competeo*- 
qy of an pbjei^^n to a decree of divisioo, whidnit wasai- 
l£^;ed, appeiu)eid fivm the books of the oommiaaioDerss but 
the avenpeuts of the parties were very contradictory. The 

^ Campbell v. Spiers, 14th December 1700. In the Faculty report of 
this case, it is said that it was ' understood, that, as the prior decree was suf- 
^ ficiently regular, it was competent, without any process of reduction, to 
( challenge the subsequent one, in which it was djumgaided.* From, the 
following notes, however, of the opinion of the Court, fronithe Se^aon Pa- 
pers of Lord President Campbell, it will appear that this is not altoge- 
ther an accurate account of the understanding of the Court.— ^ £oit/ Pre«i- 
^ deni. The division 1740, if not by private meeting, was done without 
^ evidence of any kind. Procedure in 17&3 more regular, and hat coDti- 
*• nued the rule for near forty years. See case of Shaw Stewart in 17^« 
*■ Wight, p. 201, where twenty years' acquiescence was held sufficient 
*• against a much worse objection. No e:p facie objection to decree 17^3, 
*• and must continue the rule till reduced. The original valuation was in 
^ eumtio^ and doubt if division in 1 740 could be r^arded. Commissioners 

* of Supply entitled to act to the best of their judgment, and not ti^d 
^ down to such rigid niles ; neither could any injustice be meant. The 
^ whc^e valuation was L. 863, 18s. This fully sufficient for two votes, 
*■ and it is not said that more than two have been made, or that the effisct 
^ of tustainlng this objection would be to bring the present claimant un« 
' der Im 400. Thia always required in similar ci^ses, and fitivoloiis okjfic* 
^ tions disregarded. Case of Elphinstone of Glack; DuffofLt^ie, &c; 

* Wight, p. 198. As to case of Trotter in Roxburghshire, four complaints, 
^ in which the ol^fection was made and over-ruled in three of then}, be- 
^ cause it was understood to hav^ no eSkct^'^r-Lofd JutHoe^Clerk. Must 

* say that the objection brings h^. under L.400. As to the qtt«stioa 
^ whei)ier •sfadM npU, may take under consideimtipn the val u ation books^ 
< IneUne to think it was a public meeting ; but question in 17^ was how 
^ they should proceed. But having whole before them, judged better to take 
n ong^sal cumula Judged rightly^ Proceeding 1740 nnU, for want of 
' proo£ Supposing they had been wrong, yet as acquiesced in Ibr thirty- 
*• ^even years.— ;J5«iiyroo0. Division 1740 .dearly nulL ( Subseqaeot divi- 

* sion), Continued the rule for thirty-seven years.— -Dfv^Aem. l%e same.* 



WHEN REDUCTION NECESSARY. 143 

otyectioQ, as ongioally stated to the cemvu^ianfirsp W88» that 
oertaiQ landa bad been. d«dMcted front, jthe cihmUo a$ having 
been prenoualy sqiarftted, although no evidence of this ap- 
peared from the cesB-books. When, the caae. cacna into the 
Court of Scflflion by oomplaiat^ the shape, which the objedioQ 

tmed was^ that it appeared from the books of the com-, 
not only that the lands which had been, deducted. 
had been separately valued^ but that the valuation of the 
whok uiaie^ forming the subject of the division, had been, 
previously divided, from which it was infepred that the new, 
diriskn was incompetent. In answer, i| was maintained in 
the Court of Sesskm, that, when this objection was alluded to 
in the meeting of Commissioners, it appeared from the books 
of supfrfy, which were on the table, that there was no evidence 
in support of the allegation that there had been a previous 
diviaoii of the whole estate ; and it was farther maintaiiied, 
that fiediolders were only entitled to look at the books in 
which the results of decrees of division are entered, and not 
at any previous proceedings of the commisBX>ners. It was 
repbed, that freeholders are not limited to the examimytion 
of any partictilar book of the commissioners, but must have 
access to aU the books of the commissioners, forming a puhhe 
ref^steTy and to the records of their proceedings; and that the 
present objection would appear from the bookaof the capunis- 
sionera : it also seemed to be denied that the books were oo the 
tabk at the meeting. The Court held that the objection 
could only be made effectual in a reduction K 

If the Commisnoners of Supply should refuse to proeeed 
io dividing a valuation, upon a proper application b^ing pre^ 
aented to them, the Court of Session will, when called upon 
to interfere, ordain them to proceed with the division. A 
small estate having been divided amongst a number of pur- 
diaaers, the Commissioners, upon an application to have the 
vahiatien-cbvided) refused to proceed, beingunwilling to split 

' Sinclair v. Innes, 8th March 1826 ; Session Papers, and Shaw. 



144 OF VALUED RENT. 

the l&iid4ax into ao many parts ; but the Court of Session ap- 
pointed the convener to call a general meeting to carry the 
division into effect \ The Earl of Panmure having granted 
liferent dispositions of superiority to twenty-two persons, the 
Commissioners declined dividing the valuation, on the ground 
that such a measure would occasion trouble in levying the 
land-tax, and that they were not called on to give effect to 
the creation of nominal and fictitious votes. The Court or- 
dered them to proceed ; and, on further delay occurring, pro- 
nounced a special judgment, precisely defining the mode in 
which they were to proceed, and ordaining, inier aliOf the 
commissioners, or any five of their number, to meet on a 
given day, to take such proof as was offered, and to proceed 
immediately to make the division. Wiien the proof had been 
led, the majority declared it insufficient ; and the minority pro- 
ceeded, in obedience to the order of Court, to make the divi- 
sion. The freeholders having refused to enrol the clwoants 
who founded upon this divi^oo, the Court ordered diem to 
be added to the roll ^ In another case, a amilar special 
judgment, ordering the commissioners to proceed, was pro- 
nounced by the Court. At the meeting, the majority stated 
various objections ; and, amongst others, that all having inte< 
rest had not been called. They, however, did not retire, but 
were present during the whole proceedings of the mincmty, 
and protested that the division made by them was null and 
void. The decree of division was sustained in the Court of 
Session '. In a subsequent question, a person having applied, 
twelve days before an election, which was to be on the 16th 
October, to have his valuation ascertained, the convener 

• ^ Malcolm and Others «. Commiasioners of Kirkcudbright, 4tfa Augiiat 
17A7;Wight,p. 186. 

* Earl of Panmure «. Commiasionera of Supply of Forfiffahire, 15th 
November 1768 ; Wight, p. 186 ; Bell, p. MSi 

* Stephen v. Aberoomby, 2l8t June 1774; Wight, pw IM; Bell, 
p. 381. 

4 



QUALIFICATION IN SUTHERLAND. 145 

fixed the second day afUr the election. The petidoner ap- 
plied Xo the Court, and the Lord Ordinary on the Bills, in 
vacation time, app(»nted the ISth of October for the meeting 
of the commisnoners, or any five of them. Notice was sent 
to the commissioners at large, or to the convener ; and, on 
the appointed day, a few oommisaoners ascertained the claim- 
ant's valuation to be of the necessary amount ' In a com- 
plaint at his instance against the freeholders, for refusing to 
enrol him, the Court ordered him to be enrolled, as it was 
not alleged that the commissioners had done any wrong, and 
as they had precisely followed the directions of the Lord Or- 
dinary ^ 

In concluding the subject of valuation, it is necessary to 
advert to an exception from the general rule in the case of the 
county of Sutherland, both as regards valuation, and as re- 
spects the manner of holding of the lands. In that county it 
had always been the rule for the vassals of subject-superiors, 
even when not possessed of the requisite extent or valuation, 
both to vote at elections, and to be elected as representatives. 

By the act 16th Greo. II. these anomalies were, to a cer- 
tiun extent, recc^nised, but, at the same time, were reduced 
within certain bounds. 

By that act ^ it was provided, that ' no person shall be ca- 
^ pable to be elected commissioner for the said shire, or shall 
^ have right to vote at such election, unless he be infeoft, and 
^ in possession of lands liable to his Majesty's supplies, and 
< other public burdens, at the rate of Two hundred pounds 
^ Scots valued rent.' 

It was farther provided ', that ' one person, and no more, 
^ shall be enutied to vote at such elections, or to be elected, 
' in respect of the same lands ; and that where lands are now 

1 Brown e. Hamilton, 6th December 1780 ; Wight p. 180 ; Fac. 
* Sect. 10. 9 Sect 20. 

K 



146 



aVALIFlCATION IN SUTHERLAND. 



boUeD' by Any baroo^ <h: oth^ freeholder, immediateLy of 
the Jdngor prince, such baron or freeholder shall, be eapa* 
bb to beelectedy and (hall be entitled to vote for those lands; 
and no yassal or sobvassal dt the said baron or freeholder 
shall Jiare right to vote, or to be elected, in reqpcct thereof; 
and 'thai whoee Jaads are now holden, or shall at any time 
hoieafiflr beLholden, of the king or prince, by a peer, or 
other«.person, or body politic or corporate, who by law are 
disaUod to.be a member oC> the House of Commons, or to 
vote in sucb elections; in such case, the proprietor and 
ownevv of such lands, and not any of his superiors, shall be 
entitled to vote, or to be elected, In respect of the same lands; 
and that no alienation of the superiority to be made by such 
pees, or other person, or body-p(diJdc, incapable to deot; or 
to be dected, dialL deprive the proprietor and owner of the 
landa of his right to vote in the elections for the said shire^ 
or hflB.capacitj to be elected ; nor entitle the purchaser of 
the. said au^erioaty. to vote or to be elected; and that 
therfsoperty of lands, of the valuation aforesaid, holden, in 
part^ immediately of the king or jninoe, and in part of a 
peer, or odier person, or body-politic, incapable to elect, or 
tobeeleoted, shall be a suffirient qualification to the pro- 
prietor and owner of such lands, and shall entitle such pro- 
prietor to vote^ and to be elected for the said shire, any law 
or usage to the contrary notmthstanding.^ 
It was also-enacted \ that a roll of the voters should be 
made up for Suthariand in terms of this act, and of the other 
acta relating to county elections ; which acts, it wa; provid- 
ed, should extend to Sutherland, except where it was other- 
wise pronrided by the 16di Geo. II ; and that thb roll should 
be annually revised at Michaelmas. 

1 Sect 21. 



2 



OF VOTES ON APPAHENCy. 147 



Skctiok 4. 
Of Vaie^ on Apparency^ and in rif^ qfa Wife. 

< 

The act 1681 has admUted one or two exoeptiona to the 
rule, that the freeholder muat be infelt in the estate on which 
he daiois a Tpte. 

The fint of these exceptions is in the case of appanent heirs. 
The statute gives the rig^t of voting to * appearand heirsy.be. 
' iiy in posscsaon, by virtue of th^ predeoesscv's infi^tment^ 
In a leffX sense, an apparent heir is the person entitled to suc- 
ceed to another on his decease, but who has not yet made up 
titles. Henoe, if an estate is held in fee-simple, the heir of 
line is the heir-apparent ; if it is held under a destination to 
a oertain scries of bars, the heir of investiture is the heir-ap- 
paient, in so far as r^ards that particular estate. Wherethe 
series of heirs omtauied in an investiture is exhausted, the 
estate beoomes vested in idie last of these in fee^imple, and, 
on Us death, goes to hb hejirs vdiatsoevcSr. His heir of line 
b theseCose hew-apparent. In a case whtfe a person had dis- 
poned certam lands to his eldest son, and the heirs-male of 
the body of that son, and assigned the precept of a crown 
charter, obtained to himself and his heirs whatsoever, on 
which infeftment followed in the person of the eldest son, the 
second son was held to be entitled to be enrolled as heir-^ 
piient cf hia brother on his death without issue, although an 
alten^ was made t» argue, that the right had reverted to 
the gaaiet aa the failure of the heirs of destination '. 

Hie general rule is, that the fact, that a claimant is really 
the heir of the person in whose right he asks enrolment, does 
not veqpure the evidence of a service. It is enough that the 
firediblders themselves know the circumstance '. If a service 



^ Stewirt «. Blair, te/ra. 

* Wight, p. 249; Bdl, p. 134* 



148 OP VOTES ON APPARENCY. 

should be produced to the freeholders, in support of a claim 
on apparency, they must hold it as decisive proof, and cannot 
listen to any allegation that a nearer heir may exist ^. 

In one instance, where a person at an election meeting, 
held on the 23d July, had been enrolled as heir^pparent to 
his brother, who had died on the 13th of July, it was pkd, 
when the case came into the Court of Sesmon by complaint, 
that the wife of the deceased might have been pregnant when 
he died, as he was in the prime of life. It was answered, 
that the deceased had been married for several years without 
children ; that his widow had now lodged in process a certifi- 
cate that she was not pregnant ; and that, since the election 
meeting, the dumant had been served heir to his brother. 
In these circumstances, the Court dismissed the com[Mnt 
against the enrolment ^ 

An apparent heir may claim earoiment equally upon bwe 
superiority as upon the full right of property '. 

The act 16th Geo. II. c. 11. sect. 10, provides, * that no 
^ h«r-apparent shall be enrolled until his predecessor's iUtts 
^ are produced, and aUowed by the irediolders as a su£kient 
' qualification for his voting for a meinber of Parliament.** 
Hence the production of the anoe8tor''8 sasine c»ily, although 

* Don 9. Rutherford, Sth June 1814; Fac. 

* Stewait V, Blair, I2th February 1803 ; Fa(>*The following Note, by 
Lord President Campbell, is written on the petition and complaint in this 
case : ' Colonel Blair died on ISth'July, seven months aga It ought to 
' be pretty well ascertained by this time whether he left his wife pregont 
' or not In fiu^t, the respondent has been served. He therefore had the 
*• character of apparency in him.* On a reclaiming petition are the follow- 
ing notes. — * Hermand. For altering, and finding that the freeholden did 

* wmmg, JuHiee'^^Mt. Same : we must take matters as they were. Jfas- 
« dombtmk. For adheriagt I takemattenas they stood; but what il|^t had 
' thb freeholders to make inquiries, and to ajipear fiv a auppoeed child m 
^ttiero9 JMM&Mti. For adhering. Caseof a peer different. House of Peers 

* very cautious ; because, if he were once admitted, he must sit during his 
' life.*—' Kefuse.' 

' Murray v. Nelson, 6th March Hbb; Fac. 



ancestor's qualification. 149 

the charter was afterwards exhibited in the Court of Session, 
was found insufficient ^ The act 1594? c. 214, however, 
which declares, that, when a person, or his predecessors, have 
been in possession by infeftments for forty years, it shall not 
be necessary for them to produce the precepts on which such 
infeftments have proceeded, has been found to be applicable 
to a claim at the instance of an heir«apparent. This was 
held in a case where an apparent heir having claimed to be 
enrolled in 1780, and having produced two retours of the an- 
cestor, and the sasines following on them, both dated in 17S8, 
an objection, founded on the circumstance that he did not 
produce the precepts of sasine from Chancery, was repelled '. 

The predecessor, if he has acquired his estate by singular 
titles, must have been a year infeft, otherwise the heir must 
delay his claim until the necessary period has expired from 
the registration of the sasine, because it would be inconsistent 
that the heir should be in a better »tuation than the predeces- 
sor himself *. It is not, however, necessary that the prede- 
cessor shall have been actuaOy upon the roll \ 

The qualification of the ancestor, when a claim is made up- 
on it by the heir^apparent, is equally subject to investigation, 
when the former has been on the roll, as when he has not. 
He may have been admitted on an insufficient title ; and it is 
proper that when a new enrolment is asked, the qualification 
•should undergo a new scrutiny. In a case where a person 
clumed as hdr-apparent in lands on which his father and 
grandfather had been enrolled, his title was rejected, because 
he failed in proving the necessary valuation ^. 

The clause of the act of Geo. II., which has been quoted, 
requires that the predecessor's titles shall be allowed as a suffi- 
cient qualification, which seems to be equivalent to a declara- 

^ Moodie v. Baikie, 10th February 1781 ; Fac. 

< Haldane v, Tnul, 10th Februaiy 1781 ; Fac. 

5 Wight, p. 349. < Ibid. 

^ Haldane tup, Wight, p. 248, and Fac 



150 OF VOTES ON APPARENCY. 

tioD, that, unless the predecessor could have been enrolled on 
these titles, the clium of the apparent heir cannot be sustain- 
ed ; and this, accordingly, may be laid down as the genera^ 
rule. If, for instande, the predeoessof s titles afford a right 
ex Jbuie revocable, a deed of renunciation granted to the 
heir will not entitle hin to be en^>Ued^l In a case where 
a father had obtained a diarter to himself in liferent, and 
his eldest son in iee^ whom failing, to his second son, and 
reserving power to sell and alter the course of succesaon, 
and .where infeftment had followed ; the eldest son prede* 
ceased his fiither, who then executed a deed assigning his 
liferent, and tenouDoing his' reserved powers in favour of 
Us second son. The second son then claimed enrolment 
as hdffvapparent to. bis brother, when it was objected, that the 
elder brother had no right to vote during hk life, and that 
the renunciation of the reserved powers after his death could 
not avttl the dumant ; and the Court found that he had no 
right to be enrolled ^ The prindple cm which the (bllowing 
case was decided, may serve to reconcile it with the general rule. 
The predecessor had not obtained a oonfirafeaiton of his in- 
feftment during his life, and his heiivapporent bad expede a 
charter of ooDfirmation afiier his dciLtb. In diese dreum- 
staxices, it was held, that, as oonfirmalion operates batkwardi 
to the date of the sasine, the hdr*apparent was entitled to be 
enrolled '. Where, however, the predecessor, after being en- 

^ Abereromby v. Gordon, 3d July 175S ; Fac. 

' Maodow»l and Houston o. Hamilton, 19th Januaty 1793; Fac.— 
Ncia (tf lAtf qpinjon o/ Lori PretidmU Cm^phM, Jnm kk Sudm Pi^m. 

* Respondent daima as apparent heir. The trust oonveyaaoes maj be 
' laid out of the question. But, query^ Can he claim as apparent heir, when 

* his &ther was never publicly infefl ? Will the charter of confirmation, 
« ezpade so late as 1789, being after old Aik^nhead's death, supply this de- 
' feet ? The confirmation draws back, and makes the infeftment public from 
' the beginning. The intermediate d^th «f the party inlbftdses aot pre- 
c vent the operation of it. The objection seems, therefbre, not to be good. 

* Were the late Mr Hamilton now in life he would be entitled to be en« 
« rolled upon these titles :— ffrpo, so may his son, or apparrat 



ancestor's QUALIFICATIONi 151 



rolled on a valid title, has granted a dispositioD of his edtate, 
coDtaining procuratcNy of rengnation, and has thus rendered 
bis right defeasible, and in this situation has died ; it is held, 
that the hmr-apparent may be enrolled, if, from any circum- 
stance, the right becomes, subsequently to the death of the an- 
cestor, no longer defeasible. Thus, in one instance, a person 
on the roll had disponed his lands for cert^n uses to trustees, 
with procuratory and precept After bis death, the trustees 
were infeft base ; and, for a sum of money, granted to the 
heir-apparent an obligation not to make their holding public. 
In these circumstances, the heir was found entitled to be en- 
rolled on apparency ^. In a very late case, a person on the 
roll disponed the lands constituting his qualification to his se- 
cond son, with procuratory and precept His eldest son died 
without issue ; the second son, after being infeft on the pre- 
cept, died, leaving a son, who was enrolled as heir-apparent 
to his grandfather, the disponer, and died without making up 
titles, also leaving a son. This last individual then claimed 
as heir-apparent to his great-grandfiither the disponer, when 
it was objected to his tide, that his great-grandfather^s quali- 
fication became defeasible by the procuratory in the dispoaUon 
which he had granted. It was answered, that the claimant 
alonfe had the power of executing the procuratory, as the heir 
of the ori^nal disponee, so that the right was not now defea- 
aUe by any third party ; and the Court repelled the objec- 
tion ^ With reference to these cases, it may be observed, 
that where the ancestor has actually been on the roll, and 
the objection to his qualification arises, not from any defect 
in the title on which he was originally enrolled, but from a 
subsequent conveyance which he has himself executed, there 
is less reason for refusing to allow the defect of defeasil»lity 
to be remedied subsequently to his death, than for denying ef- 
fect to a renunciation of a power of revocation, executed sub- 

* Murray «. Nebon, Sth March 1765; Fac. 

* Stewart v. Earl of Fife, aoth February 182? ; Shaw and Fac. 



152 OF VOTES IN BIGHT OF WIVES. 

sequently to the death of the ancestor, when the right to the 
estate in its original constitution was ex Jude defeasible, and 
incapable of affording to the ancestor a qualification. 

An heir-apparent is not deprived of the right to he enrol- 
led without delay, by having made up titles as heir ^ Where 
an heir is base infeft on a dispo^tion from his ancestor, that 
circumstance will not affect a claim on apparency^ ; for in such 
a case the public right still remains in hcBredUatejacenie of 
the ancestor. But it would appear that the same rule would 
apply even where the heir has completed a public title on a 
conveyance from the ancestor ; for an heir is not held to loae 
his privileges as such, in election questions, by having made 
up a singular title ^. 

The other class of voters, who do not require infeftmeot, 
consists of husbands in right of Xh&r wives. 

By the act 1681, ^ husbands, for the freeholds of their 

* wifes,^ are entitled to vote. There is a farther provi«on on 
this subject in the statute 12th Anne, c. 6, the last section of 
which enacts, that < no husbands shall vote at any ensuing 
< elecUon by virtue of their wife^s infeoffments, who are not 

* heiresses, or have not right to the property of the lands on 
^ account whereof such vote is claimed.^ 

By an heiress is understood a female who succeeds io 
an estate by succession, in virtue either of the ordinary ope* 
ration of law, or of a destination in a standing investiture. 
With respect to a female who has acquired an estate by sin- 
gular titles, Mr Wight lays it down \ that the husband of 
such a proprietrix is not entitled, under the clause of the 
12th Anne already quoted, to be enrolled. This pobt has, 
however, been subsequently dedded differently. It will be 
observed, that the clause is altemadve, declaring, that no hus- 

^ Galbndth v. Cunningham, 17th January 1755 ; Fac 
' See the case of Stewart o. Lord Fife, tup, 

* See the case of Erskine Knight r. Robinson, 26th July 1786. 

* Page 238-9. 



MUST WIFE BE YEAR INFEFT ? 158 

• 

bands shall vote in right of their wives * who are not heiresses, 
* or have not right to the property of the lands.'' In a case 
where a father, having four daughters, had disponed his estate 
to the eldest, who thus held the property by a angular tide, 
her husband was held entitled to be enrolled in her right ^ 

The clause of the ISth Anne, already quoted, as well as 
the 6th clause of that act, necessarily imply that the wife in 
whose right a husband claims, even although she be an heiress, 
shall have been infeft before such claim is made ; and the 
point has been so decided '. The question next arises, whe- 
ther it is necessary that a year shall have elapsed from the 
recording of the infeftment, before enrolment can be claimed 
by the husband. On this point it appears necessary to dis- 
tinguish between the cases where the wife^s right to the es» 
tate is in virtue of singular titles, and where she is infeft as an 
heiress. In the former case, it appears to be held that a 
year must have elapsed. It is true there is a decision where 
a different doctrine appears to have been held ; but its cir- 
cumstances were peculiar, because the wife, be«des having 
made up a singular title, also bore the character of an 
heiress. The fiither of the lady had been for many years 
infeft on a crown charter. On his death, his daughter 
served in general, as heir of tailzie, to her father, and also 
made up a title, by expeding a charter of resignation on which 
she was infeft. Her husband clumed on her singular title ; 
then withdrew that claim, and asked enrolment on her app&- 
reficy. The freeholders enrolled. In a complaint it was ar- 
gued, that, as the ancestor's sasine only had been produced, 
the claimant had no right to be enrolled on the apparency of 
his wife, and that the Court could not now judge of any other 
title to be enrolled, as the daim on which the enrolment ac« 
tually took place, was made on the apparency, and as, even 

^ Skene «. Sandilanda. 2dth January 1786; Fac— This point was also 
decided in the case of Fnser v. Ix)rd Woodhmiselee, 19th June 1804; Fac- 
* Hamilton, 19th January 1746 ; Ekh. M. P. ; Falc 



154 OF VOTES IN BIOHT OF WIVES. 

if it were competent to judge of the otfaer title, that title coidd 
not authorise enrolment, as the lady'^s infeftment had not been 
a year on reooid. An opinion was expressed on the bench, 
that, as no claim is required to be lodged at a meeting for 
election^ it was oorapettot for the court of reriew to judge of 
any other title to be enrolled which the claimant jnight have ; 
and that the rule of waiting for a year did not apply to a 
<Jaim by a husband on his wife^s infeftment. The oovplakit 
was accordingly dismissed '. If, however, it is to be held 
that this judgment supports the general doctrine, that a hus» 
band may claun on the oagidar title of his wife, where a year 
has not expired from her infisftment, it is expressly oontea* 
dieted by a subsequent case, which establishes the contrary 
rule. In that instance, the Court hdd that the hudiand of a 
lady who was thought not to be entitled to the diaiaoter of 
an heiress, had no r^ht to be enrolled, where sh^ had not 
been a year infeft. A proprietor had succeeded to his eslate 
under a destinadon to heirsonale, and had then made a new 
destination to himself, and the heirs-male of his body, whom 
fiuling, to his eldest daughter, whom faifiog, to his seoond 
dau^ter. Upon his death his second daughter had served 
heir of tailzie and provision in general to her fiuher, and beesi 
infeft It was held, although with oodsideraUe diflfeience of 
opinion on the bench, that her husband was not entitled to 
be enrolled before the expiry of a year from the infeAment *. 

' Dslrymple o. Farquhar Grey, 7th March 17S1 1 Fac. 

* Farquharson o. Ferguson, 11th March 1807; Fac— The fi>Uowl^g 
Note of Lord Prerident Campbell is written on the petitio& sad com- 
plaint. « 

' FRESBOLDxa.*-^tw6and— Case of Sandilanda well decided; likewise 
« case of Lord Woodhoiuelee, 19th June 1S04. Mrs Fraser Tjrtler had 
« been more than year and day infeft Mrs Farquharaon takes ass iingu- 

* lar auooaasor, and title as such neceHaryiii her pcnon. Shecaasot take 

* as apparent heiress on her &ther'8 infeftment, and law of election looks 
^ to nothing but chartera and sannes. Ko personal ilghta. Moat take 
*bothactofQueen Anne and 10th Geo. It. together. SiDgular Meeeasev 
^rnust be year and day infeft — fi^rMONdL TUle good. t. She la m hdr- 



MUST WIFE BE YEAR INFEFT? 165 

The qaestion, whether a year must have ekpsed hem a 
wife's infeftment as heiress^ before the husband can claim, ap- 
pears not to have been yet finally decided. The case of Far- 
quhar Grey would decide it i Jbriiori^ were not the effect of 
diat case weakened or destroyed by that of Farquharson. 
On the one hand, it may be said^ that it is hard that the hus- 
band of an heiress should be obliged to wait kmger than an 
beir«apparent himself ; and that the 6th clause of ISth Anne, 
which -reserves the right of husbands to vote, in virtue of 
their wives' infeftments, any thing in that act notwithstand- 
ing, decides the pmnt On the other side, it may be argued, 
that it is settled that the heiress must be infeft, and if so, it 
may be doubted whether the first clause of the ISth Anne, 
which introduced the rule as to the lapse of a year, does not 
apply to such a case, and that the fifth clause might Ite well 
be held to save the husband of a wife, who takes by singular 
titles, as the husband of an heiress, from wmting a year. 

On the supposition that the husband of an heiress is not 
bound to wait a year from his wife'^s infeftment, a farther 
question arises. It has been already seen, that, in the case of 
an heir-apparent, it is understood to be necessary, that, if his 
predecessor has not been a year infeft in lands acquired by 
himself, and not taken by succession, the heir must wait till 
the expiry of that period, before he makes his claim. There 
can be no doubt that the same rule would apply as to the 
husband of an heiress, with respect to her predecessor's sa- 
sine, because it would be absurd that she or her husband 

' era. % In case of wife, no time specified for infeftment.— Jitf/iM-C^it. 

* Contra. 1. Not heiress. Suppose she had been a son, must produce in- 

* vestiture.— jMMcfovtenJt. She can never connect herself with &ther*s 
^ infeftment in any form.— -iVInoton and Armadale for repelling the olgec- 
'Uon.— -Cro^ Same.— Bannoi^. Objection good.* ^ 27th February 1807, 
' Dismias the cdmplidnt of the claimant* 

A petition against this interlocutor was presented, and answers order- 
ed. On the petition there ia marked, by the Head of the Court, < See 
' fbnner notes. Not clear.*— < 1 1th March 1807, Adhere.' 



166 OF VOTES IN RIGHT OF WIVES. 

should be in a better dtualion than her predeoeasor himself, 
or than an heir«apparent in similar circumstances. 

The meaning of the word property^ in the 7th clause of 
the ISth Anne, which has been quoted above, has given rise 
to several questions. On the one hand, it has been maintained 
that that expressidn was opposed to superiority, as is thei case 
in the act 1681 ; and that it was made requuite by the act 
of Anne, that the female, in whose right a husband claimed 
should either be an heiress, or should have the substantial 
property of the estate, and not the bare superiority. On the 
oth» hand, it has been argued that the legislature had it in view 
merdy to prevent temporary votes, such as liferents m* re- 
deemable rights, and not to exclude votes on superiority. In 
the first reported case in which the question occurred, it be^ 
came unnecessary to determine the point, as the case was de- 
cided on a preliminary question ; but the report bears, that 
several of the Judges expressed an opinion, that the objection 
to the vote, ariang from the circumstance that a part of the 
qualification, on which the husband claimed, was a right of 
superiority alone, was well founded'. In a subsequent- case, 
however, in which the questicm was brought to a deosion, a 
great majority of the Court were of a contrary opinion. Cer- 
tain superiorities having been there purchased by the husband 
of a lady, and added to the (entail of the lands to which she 
had right, with the view of completing a freehold qualtfica- 
tion, the right of the husband to be enrolled on those supe« 
riorities was sustained'. 

Although it was thus held that the word property, in the 

^ Nisbet V. Hope, 23d February 1790; Fac. 

* Fraaer v. Ld. Woodhouselee, 19th June 1804 ; Fac On the petition 
and complaint there is the following note of Lord President Campbell :.— 
' Part of the qualification is naked superiority. By thq act of Queen 
* Anne it is stud, husband not entitled to vote upon this, unless wife had 
*" succeeded to it as an heiress. In case of Sandilands, wife had the full 
'property, and was really an heiress.-^ See case of Nisbet v. Hopei 



OP VOTES ON TllE COURTESY. 157 

act of Queen Anne, did not exclude a husband^s vote on the 
superiority of his wife, it was held, in a recent case, to disqua- 
lify him from voting on a liferent right, in his wife's person, 
by virtue of which, in addition to the full usufruct of the 
lands, she also enjoyed the power of burdening them with 
provisions in favour of younger children*. 

A husband may be enrolled, partly on lands in which he is 
himself infeft, and partly on lands in which his wife is infeft. 
This was found in a case where a husband claimed in part 
on lands in which his wife was infeft as an heir-portioner*. 

The statute 1681 farther gives the right of voting to those 
husbands * having right to a liferent by the courtesy.' The 
courtesy is a liferent enjoyed by a widower, of all heritage in 
which his wife was infeft as an heiress, and not on singular 
titles, provided a living child has been born of the marriage, 
who is his mother's heir in that heritage'. All these requi- 
sites must of course concur, in order to entitle a widower to 
claim enrolment on the courtesy. Accordingly, in a case 
where a claimant's wife had acquired her lands, not as an 

^ 88d February 1790 ; and aee case of Sir John Paterson v. Ord, let Fe« 
< bruary 1781 1 Skene v. Sandilands, 25th 178& Property not 

^ opposed to liferent, but to naked superiority. Meant a beneficial interest 
^ in estate. Mr Wight's opinion not supported by authority. — See conti- 
^ nuation of Wight, pages 69, 70.* *20th January 1804. Order memorials.' 
On the memoxiab there axe the following notes taken by the Head of 
the Court : — ' CuUm, Word hdress not to be strictly interpreted ; and as 
*• to property, it is not in contradistinction to dominium dkrectum^^^Her^ 
' mand. Same. Case of Byron Gordon, and case of Erskine Knight. Sup- 

* pose Lord W. had kept this part of the qualification to himself could he 
\ not have voted on that and his wife's right together.^^rmadSiil9 ? Same. 
> -^UUtnUe*. Hesitate on word property.-*illMHiDcetenJ(r. Think the word is 

* in contradistinction to dmmnium directum.'^-^^ 19th June 1804. Eepel the 
^ objection.* 

* Maq^owan v. Montgomery, 16th November 1822 ; Shaw ; Fac 
> Hamilton, 19th January 1745 ; Elch. M. P. 
' Erskine, ii. 9. 68. gt $9q, 

3 



158 OF VOTES ON* ADJUDICATION. 

beireflB, but on nngular titles, it was held that he oould not be 
enrolled on the courtesy ^ 

If a husband has been earoUed, during his wife^ lifetime, 
on lands to which she has no nght as an haress, but merely 
in virtue of ni^lar titles, he is not entitled to condnue on the 
loU after her deaths because ^there is no courtesy in such a 
case. But, if the enrolment has been made as husband of an 
hdiesB, he is entitled to ocmtinue aft^ his wife^s death, in 
virtue of the courtesy* This was held even in a case, where, 
althou^ the wife had the character of an heiress, in regard 
to certain lands, by virtue of a marriage-contract, she bad 
made up titles, not by service, but on a disposition ffaom her 
fiither, on which titles, and without founding on the mar- 
riage-contract, her husband had been enrolled. It was found 
to be unnecessary for him to lodgt any new daim of enrol- 
ment, although it was Bgieeed that he Aould exhiUt the 
marriage4x>ntract, to entitle him to continue on the roU '. 



SBCTIOM 5. 

Of Vdes on Adjudica^on atnd Wadtei. 

By the act 1681, adjudgers and premier wadsetters are ad- 
mitted to vote ; and their right is reserved entire by the sub- 
sequent statute of 12th Anne, c. 6, which declares that re- 
deemable rights are incapable of afibrding a qualification. 
The subject of votes oa adjudication is little more than a mat- 
ter of curiosity, as diere are hardly to be fiHmd onreootd any 
qiMsti(»s rdating to the elective frandiise, arising out of the 
rights of adjudgers. With respect to thefn, the act \fSBX 9^ 
dares, ^ that apprisers or adjudgers shall have no vote in the 
< saids elections, during the XegeX reverdon ; and thai, after 

^ Patenon » Ord, lit Febnuurj 1781 $ Fac. 

* EnUna Knii^t v. BobloMm, setb Julj 1786; Fac 



OF yjOT£S ON AJXrUDICATlON. 159 

< the expiry thereof^ the appriser or ai^udger first iafieft ahall 

< only have Tole, and no other appriser or a^judger coming in 
^ pari poMfif till thar sharea be divided, that the esLtent or 

< valuation thereof may appear ; and that, during the Iq^, 
* the heritor having right to the reversion shall have vote.* 
The first infieft adjudger is thus entitled to vote^ after expiry 
of the legal period of reversion, wlulst, duiiag the currency of 
that period, the proprietor .or reverser has the dective privi<« 
lege» Thb mode of fixing the time, when the right of the 
one ceased and of the other b^an, was accommodate to the 
old state <^ the law, according to which the right of redemp« 
tion by the proprietor was foreclosed on the expiry of the 
legal:; and the adjudger^s right becomii^ then absolute, and 
no longer dependent on the will of another, his title to.exer* 
dae the elective privilege was admitted. For many years, 
however, the doctrine has been understood as established^ 
that a process, called a declarator of expiry of the legal, is ne* 
cessary, bef(»« the debtor^s right of redemption is forfeited S 
at least within the years of prescription ; and, on this ground, 
doubts have been entertidned whether effect would now, in 
that state of the law, be given to the claim of an adjudger be- 
fore such declarator*. The expry of the legal is no longer 
to be viewed as the period when the right of the reverser 
ceases, and that of the adjudger is converted into a right of pro- 
p^r^ ; and, even after that event, the right of the adjudger 
is dependent on another, till the process of declarator is 
Imnight. In so far as regards the right of a reverse already 
on the roll to ranain on it, it may be objected to an attempt 
to strike him off before decree of declarator c^ expiry of the 

> Oonpb^ V. Scotland and Jack, 7tli March 1794 ; Fac Onniflton v. 
Hfl], 7tli November 1S09 ; Fac. See also Mr BeU'a CommcntarieB, voL i 
pb SOI, 4th edit, where^ at the fame time that the. law on the aulgect ia 
stated to be considered as settled, in conformity with these dedaions, 
some doubts which have been expressed on this point id certain quarters 
are also noticed. 

< Bell, p. 147^ 



160 OF VOTES ON WADSET. 



kgftl, that his right remains as stroog as it was befi^re the ex- 
piry of the l^gal; and that the reason why the act*16Sl gave 
the adjudger any dtle to vote at that period, was because the 
right of the reveraer then ceased, and that of the adjudger 
became absolute and irredeemable, which is not the case at 
present. Even before the date of the dednons pronounced, 
aeoording to the present views of the law, it was hdd neces- 
sary, in order to give effect to an attempt to turn a reverMr 
off the roll, on the exjnry of the l^al, that the adjudger 
should have been in possesion ^ Ifk opposition, however, lo 
the arguments on this subject, founded on the new views of 
the law, it may be argued, that the.proviaon of the act 1681 
remains stiil unrepealed, and ought, therefore, to have eflfect 
given to it* 

The statute gives the right of voting to the adjudger first 
infeft ; but in a case where a sale of lands had been rreferred 
to arbiters, and after decree had been pronounced by them 
in favour of the purchaser, he had adjudged in implement, 
and was infeft, he was- found entitled to stand on the rollf al- 
though creditors had adjudged and been infeft betwe^i the 
decree-arbitral, and his] adjudication, as his right was held to 
draw back to the date of the sale '• 

The act 1681 also gives the right of voting to ^ proper 
^ wadsetters, having lands of the holding, extent, or valua- 
* Hon, foresaid.^ A proper wadset, in its true and original 
sense, is an impignoralion of land, as a security for a sum 
of money advanced, under the power of redeeming the lands, 
on repayment of the loan, the rents being in the mean time 
hdd as in satisfaction of the interest of the money, with- 
out any after accounting between the parties. In process 
of time, however, and long before the date of the act 1681, 
the lands given in wadset came to be in reality aUenaied 

^ Home Campbell and Kerr v. Homes, 7th June ] 748 ; Falc. ; Elcli. 
* Hay and Cockbum «. Lord Dmmmore, 26th February 1745; Falc 
and Session Papers. 



WHAT IS A PROPfiA WADSET ? 161 

to the leodtf y and not merely impigiiorated, although the 
power of redemptioa still remained ; so that the right of the 
wadsetter befcnre redemption was a true right of property ^ ; 
and this is the nature of a contract of proper wadset at the 
present day. An improper wadset, on the other hand, is 
merely a right in security, where, although the lands are held 
till the inoney is repaid, yet a subsequent accounting takes 
place between the parties, the lender recmving any deficiency 
in the rents below the legal rate of interest of the sum lent, 
and repaying any surplus. The proper wadsetter, in short, 
takes the risk of the rents, and may gain or lose, as the case 
may be ; the improper wadsetter gets neither more nor less 
than the just interest of his money. 

It is the proper wadset only which gives the privilege of vot- 
ing under the act 1681 ; and considerable diificulty often arises 
in distinguishing this right from improper wadsets, from those 
redeemable rights whidi are dediued by the 12th Anne to 
be incapable of afibrding a vote, and from fictitious and tem- 
porary rights, created merely for political purposes. 

It is settled by a variety of cases, that it is not essential to 
the constitution of a proper wadset, that the transaction shall 
be framed in the shape of a regular loan, where, on the one 
hand, a sum is advanced on that footing ; and, on the other, 
the lands are regularly conveyed in security of this advance. 
Transactions have been sustained as wadsets afiPordhng a vote, 
where, exjftune of the deed of conveyance, the right was a 
formal alienation, not framed as a security for a loan, but 
granted either with or without a specific onerous oonridera- 
tion, and redeemable for payment of a certain sum of money. 
Thus a wadset, by a father to his second son, of a superiority 
yielding about L. 96 yearly, redeemable for 1000 merks,- but 
not reciting any sum given or borrowed, was found to be a 

> Enk. ii. & 4. 



108. OF VOX£$ ON WADSET. 

good ^h to vatoK A OMivejmMe^ narratkigy ifast wbtreas 
tbediaponee^ ^hiLs mkide p^yonent to i*e of the jwn of L. idO 

< BtotitQgr' ^<^'* therefore^? be M^ by tbefiepneflciits, stU, af^ 

< futiltte, and .disfiQiie^ <Sertam lands; mantioaed, which are J^ 
chared to: tie (fedeemaUe at.a.-oertain teem^ or any olliep term 
tkacctt&er» fiHripwfnaentjof L. SO Sterhng, wa& fbiwd to faa a 
gHd;ti^itaiiMc^ both by the Court of Sesmon^ and by>the 
Oonunkiae of rtfae.H^wseof Cmnmbti^ although itwas ai^fiaad 
tbat.thiflrooQWByaiica waaiBot of the nature of a wadset, but 
one of di09e . x»deemaUe rights which are repvobated by- tlva 
aoll9th.of-Aliae-. IntbedeedinthtsoBse, itwiUbeobaep- 
Yfld:tbHt the word wadset aid pot oooun 

In neither of these cases did the deeds contain what, is oalL 
ed'tbe^lause/pfvreqpiiiitbpyby which the lender isjempowered 
to redmfk i^^miosDfiyf. md reconvey t}ie wadset laads».aiid 
which it h^s.been argued 19 essential to. the ooastilution^ a. 
propw wad^irigh^ as' ipiplyiog a loan. The like want was 
found not to<be htaX in aopther. case^. It is ^erefiom settled^ 
that this clause, i^upt essential totbeoonstitution of a wadset 
light) which wiU- aINd a.vpte* Indeed, it has been main- 
twifd tbatt ijhe ^jdausei of requisijtion is a median niwBtiQi^ 
unknown in \l^ origMial.f^parn) of the wadset. 

The precedii)g ca^es afford, instances; where the difft^^^jy 
was to di^tii^isb the rights from rodeenable alienations^ 
vfhiah do not iifford a ^inaUficaition. Instancea.have. also oe- 
cureed, where it was inaintained that the rights chumed on 
y^&e ,tru]y in^proper wad^ts ; aqd this, has been e«pecMUy 
thecal w.ba^e l]|« superiority oply of the lands Jias bomdian. 
poned in wedset, . Thun, in one case, the cUwimstonflBi 900* 
desiQeDdedooi as. infemQg.tbftt the contr^Pt was an iaapioper 
wadset,, were, thfit tbs lands wese. waewited to be al the en-^ 

^ Freeholden of Ross v. Monro, ISth July 174S ; Elch. Sf. P. 40. Falc 
* Henderson «. Dalrymple, 7th March 1776 ; Wight, p. 241. 
' G«lbraith o. Cunningham, 17th January 1765 ; Fac. 

2 



AVHAT IS A PROPER WADSET ? l68 

ttj worth the interest advaneed ; that the greater part of the 
laiMb convejed was mere superiority, the feu-duty of which 
was certain and invariable, and therefore gave no risk to the 
wadsetter ; and that the casualties of superiority were pay- 
able totthe re verier, contrary to the principle of proper wad- 
sets, by which the wadsetter draws the whole profits of the 
laads. To these objections, however, it was hdd a suffident 
answer, that the clause of warranty, applied only to die entry. 
Mid not to the future ; that the wadsetter was not bound to 
account for the feu-duties he drew, and had the risk of the 
rise and fall of the rents of that part of the lands which was 
conveyed hi property; and that the casualties fell seldom, 
and were not looked to by the wadsetter. The wadsetter was 
&und entided to be enrolled ^ In a subsequent case, also^ 
where it was objected to a wadset of superiority, that the 
wadsetter ran no risk, as the feu-duties were certain, and it 
was answered that it could make no difference in a wadset of 
the property of lands, that the rents were well paid by good 
tenants, the qualification was sustained ^. 

These cases, it will be also observed, establish that the 
wadset of a simple superiority constitutes a valid qu^Jificatioo, 
if the other circumstances of the contract do not give rise to 
objections. 

In a case which occurred a few years ago, a claim of enrol* 
ment was made on a wadset of superiority, granted in June 
1817, for an advance of L. 550, and yielding a feu rent of 
L.5 per annum, which was held as in satisfaction of the in- 
terest of the. sum advanced. The right contained a clause of 
requisidon. • The land was declared not to be redeemable 
till Whitsunday 1622. The qualification was held to be bad 
by the narrowest majority of the Court ; the majority assign- 

^ Campbea v. Stirling, 6th Mmti 1754 ; Fac. Mr Wight, p^ 244, has 
expressed some doubts as to the propriety of this decision, on account of 
the cMHalt S cs having been reserved. 

* Grant v. Campbell, SSd Februarf 1700; Fac 

l2 



164 OF VOTES ON WADSET. 

iog OS the grounds of their judgment, that the right *• was not 
^ a true wadset of a superiority, in which the annual product 

* bore some proportion to the interest, so as to be included in 

* the provision of the act 1681 ; but was a mere bargain to 
^ let out the privilege of voting at a particular election, and 
^ was therefore inconsistent with the principles of the election 
' law.** The minority, on the other hand, held that the right 
was one of proper wadset, under the act 1681, and that the 
series of cases on the subject established the validity of the 
qualification \ 

The next question relates to the possibility of creating a 
right of pnqper wadset, under the burden of a liferent. The 
constitution of such a right has been attempted in various 
ways. Sometimes the subject has been conveyed in wadset 
to one person in liferent, and another in fee. At another 
time, the lands have been disponed to .one in liferent, and to 
another in fee, but redeemable only as to the fee. And, last- 
ly, an ordinary right of liferent has first been created, and 
then the fee has been conveyed in wadset, by a separate deed, 
to a different person. The objection to all such rights is, 
that the idea of a proper wadset being, that the wadsetter 
enters into possession of the subject, and draws the rents, 
as a surrogatum for the interest of money lent, a right 
burdened with a liferent can only admit of a nominal pos- 
session, from which no emolument accrues to die fiar during 
the existence of the liferent, although it is only with re- 
spect to the fiar in the last of the above moiUoned me- 
thods, that the question as to the right of voting on such a 
title has been expressly decided. In the decision alluded 
to, a liferent of the superiority of certain lands had first 
been created in the person of one individual, and the fee had 
then been conveyed to another, redeemable on payment of 
L. 60, * at the first term of Whitsunday after the lapse of 

* two years from the death of the liferenter.' It was argued, 

> Scott V, Lord A. Hamilton, 16th January 18S0 ; Fac 



LIFERENTS OF WADSET. l65 

that, as the fee was burdened with a liferent, it was not such 
a wadset as could give a right to be enrolled ; and the Court 
decided in conformity with that argument ^ There are one 
or two other cases in which instances occurred of wadsets 
burdened with liferents; but the questions decided were 
mixed up with points arising out of other circumstances, so 
that no certain inference can be drawn from those decisions, 
as to the validity of such wadsets. Thus the superiority of 
certain lands having been conveyed to one person in liferent, 
and to another in fee, redeemable as to the fee, on payment of 
ten merks Scots, at the next term of Whitsunday, or any 
subsequent term, and the fiar having been enrolled on this 
title, it was argued in a complaint, 1^^, That the right was 
not a proper wadset, but a sale, redeemable for an illusory 
sum, and reprobated by the ISth Anne; and, ^, That, 
being burdened with a liferent, it was not capable of afford- 
ing a vote as a wadset. The Court ordered the claimant to 
be struck off the roll, but the report does not bear upon whici? 
of the objections the judgment proceeded ^. There is anothei 
case, in which there certainly is room for an argument, that a 
wadset burdened with a liferent, was held to be capable ot 
afibrding a vote; but there were here, also, other circumstances 
which leave the exact grounds of the decision uncertain. A 
proper wadset had been executed in favour of one person in 
liferent, and of another in fee ; and less than a year before 
the fiar claimed enrolment on that title, the liferenter had 
granted a renunciation of his liferent to the (iar. It was ob- 
jected to the clium, that a year ought to have exp'u*ed from 
the renunciation, as the claim was made, not as naked fiar, but 
as sole proprietor; and also that it was absurd to grant a 
UferetU of a right redeemable at any time. It was answered, 
that the fiar had a good title to be enrolled, independent of 
the renunciation ; and that the act 1681 does not distinguish 

» Forbes v. Blair, 6th March 1789 ; Fac 

* Colquhoun r. Hamilton, 1st July 1773; Fao. 



166 OF VOTES ON WADSET. 

between wadsets under liferent, and those not so burdened. 
The Court found that the claimant was entitled to be enroU 
led^ 

Although a wadset, after the term of redemption is come, is 
dependent on the will of the reversa:, yetil is underi^ood- aloll 
to entitle the wadsetter to vote, in virtue of the clause of the 
act 1681, which provides, that * rights to vote, proceeding up- 

* on expired comprisiogs, adjudicadons or proper wadsets, 

* shall not be questionable upon pretence of any order of re- 

* demption, payment, and satisfaction, unless a decreet of d&- 
^ clarator, or voluntary redemption, renunciation, or reeigna- 

* tion, be produced'.^ 

A deed of renunciation by the wadsetter deprives him of the 
right of continuing longer on the roll. This follows from 
the clause of the act 1681, which has just been quoted. It 
is, however, a different question what is necessary to reinvest 
the reverser with the full right of property, and to restore 
him to the right of voting. Mr Wight throws out some 
doubts whether the same renunciation, which deprives the 
wadsetter of the elective franchise, does not recbnfer it upon 
the reverser, and quotes a case in which the point uifiderwent 
discussion, but was not brought to a deeirfon^. As a wad- 
setter's right, however, perfected by a sasine i^n a charter 
flowing from the rcverser's superior, is a oonqdete right of 
property, to the absolute exclusion of the reverser,^ during the 
not-redemption, it is contrary to feudal principtes^ that the 
reverser should be reinvested in any other way than upon a 
new right flowing from the superior. In practice, a renuncia* 
tion is not held sufficient in such drcumstances ; and it rather 
seems now to be understood that a new investiture is neces- 
sary to restore the reverser to the exercise of the elective jW- 
vileges \ 

^ Colquhoim v. Urquhart, 23d February 1774; Fac 

« Wi^^ p. 241. ' Lockhart, 1767 ; Wight, p. 246. 

« See Sup. to Wight, p. 78 ; snd Bell, p. lOS. 



REDEEMABLE AND BE VOCABLE RIGHTS. 167 



Tbe r^t of proper wadsetters to vote most be considered 
«ts An esbOeplion to the general rule, that rights of a redeem- 
able nature cannot afford a qualification. 

The statute ISth Anne, c. 6, provides that ^ no infeofinent, 
^ taken upon any redeemable right whatsoever, except proper 
^ wadsets, adjudications, or apprisings, allowed by the act of 
' Parliament relating to elections, in one thousand six hundred 
^ and eighty-one, shall entitle the person to vote or be elected 
^ in any shire or stewartry.^ Tbe same principle is readily 
extended to reserved powers of revocation, and the general 
rule may be laid down, that the title on which enrolment is 
claimed must be absolute, and not defeasaUe at the will 
of the granter ^ Thus, where a father had conveyed certain 
kmds to himself in liferent, and his son in fee, but with a re- 
served power to alter, the son was found not to have a legal 
qualification, although the reserved power had been dischar- 
ged more than a year before the claim of enrolment, because 
the discharge had not been put on record a year before that 
date'. In like manner, when the granter has reserved to 
himself an interest in the lands, amounting to an absolute con- 
troul over them, the dtsponee will not be entitled to be en- 
rolled. Thus, where a father, in disponing certain lands to 
his son, had reserved his own liferent, and a power of aliena- 
ting and burdening, without the son^s consent, the disponee 
was found to have no valid qualificatiiH], although a renunda- 
tion of the reserved power had been granted, and put on re- 
cord, one month before enndment was claimed ^ But, in 
a ease where a father, in a disposition of certain lands to him- 
self in liferent, and his son nominaiim in fee, reserved a 
power to sell or dispone gratuitously, during the minority of 

son, without his consent, and declared that it should not 



' Wight, p. 226. 

> Grant fk Hty, 14th January 1761 ; Fac. 

* Dundifl «. Craig and Freeholders of SiirUngshire, 17th January 1755 ; 
Fac See alao Aherct om Me v. Otirdon, 3d July 1763 ; Fac. 



168 OF THE TEUST-OATU. 

be in the power of the son, at any time during his father^s 
life, to sell or burden without his concurrence, the Court hdd 
that, as the power reserved to the father expired at the son^s 
majority, and before enrolment, and as the other restrictioDy 
^f fatal here, would also be fatal to an heir of entail, the son 
was entitled to be enrolled when major ^ 

It folbws from this last mentioned case*, and from the rule, 
that an heir under the strictest entail is enjtitied to vote, that 
any restrictions imposed by the granter of a dispoadon, 
which merely have the e£Pect of limiting the exerdse of the 
right of property, at least where the limitations are not greater 
than are usually imposed upon heirs of entail, will not inter- 
fere with the elective frandiise. Although the disponee is 
debarred from selling, or from altering the order of succes- 
sion, or from contracting debt, to affect the estate^ his right 
to vote will pot be impaired, 



SECTION 6. 

Of the Oath of TruH and Poue^nony and the Obfection rf 

Nominalify. 

The subject on which a vote is claimed, must be in the 
possession of the claimant; and must be a true estate vested 
in him. Many statutes have been framed for the purpose of 
securing those requisites, and of meeting the various devices 
which the desire of political influence has introduced, with the 
view of multiplying votes. 

The act 1681 simply provides, that the claimant shall be 
^ in possession' of the lands. This enactment, however, was 

* Inglis 9. Cunningham, 7th Febniaiy 1809; Fac 

* See alio the caae of Goldie o. Gordon, 5th January 17S8 ; Fac. ; 
Wight, p. 997. The objection made in this case is sUted in the Faculty 
Collection to have been wtUimedi but this is undentood to be aa orar. 



OF THE TRUST-OATH. 169 

not calculated to secure completely the true and rabstantial 
naluie of the freehold. Amongst other schemes, it would ap- 
pear, that conveyances in trust, or redeemable for elusory 
sums, had been devised, in virtue of which the claimant ex- 
pected to exercise the elective ftanchise, whilst the real inte- 
rest in the lands was vested in another. To counteract those 
devices, the act ISth Anne, c. 6, was passed, which, beades 
some other provisions calculated to secure the same end, pro- 
vided, that every elector, when required, diould take the fol- 
lowing oath : — * I, A. B. do, in the presence of God, declare 

* and swear, that the lands and estate of , for 

* which I claim to give my vote in this election, are not cou- 

* veyed to me in trust, or for the behoof of any other person 

* whatsoever ; and I do swear before God, that neither I, nor 
^ any person to my knowledge, in my name, or by my allow- 

* ance, hath given, or intends to give, any promise, obliga- 
^ tion, bond, back-bond, or other security, for redisponing or 
^ reconveying the said lands and estate, any manner of way 

* whatsoever. And all this is truth, as I shall answer to (xod." 
It was farther provided, that * in case such elector refuse to 
^ swear, and also to subscribe the said oath, such person or 

* persons shall not be capable of voting, or being elected at 
^ such election.^ 

This oath, however, it would appear was found insufficient 
to prevent the new modes of creating fictitious votes wbidi 
were devised. By a subsequent act, the 7th Greo. II. c. 16, 
a new oath of the tbllowing tenor, was therefore substituted for 
the old one :-— ' I, A. B. do, in the presence of God, declare 

* and swear, that the lands and estate of , for 
^ which I claim a right to vote in the election of a member to 
^ serve in Parliament for this county or stewartry, is actually 

* in my possession, and do really and truly belong to me, 

* and is my own proper estate, and is not conveyed to me 

* in trust, or for or in behalf of any other person whatsoever ; 

* and that neither I, nor any person to my knowledge, in my 



170 OF THE TRUBT*OATH. 



or onmy account^ or by my ^/kamaaice^ bath givira, 
> or intends to* gite^ any proaiifle,' obligatioii, boiid, btok- 
^'bondj m^ otber seeiirity frhctfid^ver, other dian i4)p«ir8 

* from the tenor and oontenu of the ^btle upon irhieh I now 

* dttm a right to vote, direetly otr indirectly, for redkfxming 
^or r^ooRTeying the said lands and estate, in any vuLntier et 

* way wbatsbefver, or for making the rents or profits tbemxf 
^forthcoming, to the use and benefit of the person €nmb 
^ whom I have acquired the 'said estate, or any odier pevsda 

* whatsoever ; and that my title to the said lands and e^ate 

* is not nominal or fictitious, created or reserved in me, in or- 

* der to enable me to vote f<»*a member to serve in Parfia- 

* ment, but that the same is a true and real estate m me^ fer 
' my own use and benefit, and for the use of no oAer jfterson 
' whatsoever ; and that . is the truth, as I shall answer to 
«God.' 

This oath is appointed to be taken ^ by ^ every freeholder 
< who shall claim to vote at any dection of a niember to serve 
^ in Parliament, for any lands or estate, in any county or 

* stewartry in Scotland, or who shall have right to vote m 
^ adjusting the rolls of freeholders, upon the request of any 

* freeholder formerly enrolled.'^ It is, by another clause *, 
provided, * That in case he shall refuse, if required, to* take 

* and subscribe the oath aforesaid, his vote shall not be admit- 

* ted or allowed, and his name shall forthwith be erased out 

* of the roll of freeholders ;' and the penalties of peijury are 
incurred by iwiy one wilfully and falsely swearing and sub- 
scribing the said oath. 

This statute also contains towards the end a general clause, 
enacting* ' That every freeholder in Scotland shall, before 
^ he be either enrolled or admitted to vote at any future elec- 

* tion, or meeting for enrolment, in any question for the 

* choice of a clerk or preses, or other question whatsoever (if 

» Sect.2. *Sect3. >Sect.l«. 



WHEN IT MAY BE PUT. 171 

' cequired by any freeholder present), be obfiged to tak^ and 

* subscribe the oaths appointed by law to be taken by elec- 
^ ton of members to nerve in Parliament, when required so 

* to do.' 

The first of those clauses, it will be observed, provides 
that the trust-oath may be put, before voting in the decdon 
of a member, or in adjusting the roUs ; the last enacts that 
the election-oaths generally, may be tendered to any one be- 
fore he is enrolled, or votes in the choice of preses and clerk, 
or other question whatever. Hence a question arose, which 
wa8> stirred on various occasions, whether the last mentioned 
clause ought to be held to have superseded the first, and to 
have rendered it necessary for a freeholder, when required, to 
take the trust-oath before the election of preses and clerk. 
This question, after some variation in the decisions of the 
Court of Session, was determined in the negative by a judg- 
ment of the House of Lords ^ 

By the subsequent statute S7th 6ea III. c. 138 '^ how- 
ever, it is provided, * That if any person at an dection for a 
^ member to serve in Parliament for any county, shall oflPer 

* Co vote in the election of preses and clerk, it shall and may 
^ be lawful for any freeholder, %to put the oath of trust and 
^ pQsaessian to him, before giving bis vote, in ihe^eame maimer 
^ asie now pracHeed after the preses and clerk are diosen.* 
This enactment, it will be observed, does not apply to Michael- 
mas meetings. 

It is equivalent to a refusal, if the freeholder, when the 
oath is tendered, makes no answer, and leaves the Court ^; 
or if, before it is tendered, he retires, comes in, just in time to 

^ 3l8t Karch ITTS* reversing the contnory jtu%ment of the Court of 
Sesaioii, in the case of Onmt v. Duff, 84th February 1773 ; Fac. In the 
ptevious case of Fzaaer e. Oorddn, 19th November 1768 ; FoL IMct. iii. 
ti2, the Court of Seasioii had decided in conformity with the judgment of 
the House of Lords, in the ease of Grant 

* Sect. 2. ' Ferguson v. Campbell, 9th December 1780 ; Fac. 



178 OF THE TRUST-OATH. 

Yote, and then refuses the oath, on the ground that it is too 
kte to administer it ^ 

A person who has voted in the choice of preses and clerk, 
and is then elected clerk himself, is not entitled to refuse the 
oath, on the ground that he has resolved not to vote in any 
other question '. 

If a freeholder has been enrolled on a large valuation, and 
parts* with a comparatively small portion, clearly retiuning 
enough to afford a legal qualification, it is not a refusal, in the 
sense of the statute, if he decline taking the oath, asdgning 
those circumstances as his reason for so refusing ^ The oath 
bears that the freeholder is in possesaon of ^ the lands and 
' estate of , for which / claim a right io tdoU -^ 

which words are calculated to meet such circumstances as 
those just mentioned. 

In one instance a freeholder, who had been enrolled on a 
wadset, and, after obtaining the right of reversion, had cchi- 
veyed the fee to another, presented a petition to the freehold- 
ers to be continued on the roll, in virtue of the liferent He 
was not present at the opening of the Michaelmas meeting, 
and his name was therefore not taken down in the minutes by 
the derk ^ but having afterwards come in, without, however, 
qualifying himself for voting, by taking the oaths to govern- 
ment, and the trust^oath having been tendered to him, he left 
the room, saying that he was not a member of the meeting. 

> Brodie v. Urquhart, 7th July 1784; Sup. to Wigbt, p. 8$; FoL 
Diet ilL 421. 

« Freeholders of Caithness r. Rose, January 1790 ; Sup, to Wight, 
pb86; FoL Diet iiL 421. 

' Gordon «. Heron, 25th February 1803 ; Fac The report of this cMe 
bears, that it was obaenred on the Bench, ' That the bhmk in the oath 
' ought to be filled up by the party himself, not by the person who calls 
' the roll, who has no power to exercise his judgment about the matter. 
*' If the party acts impropeily in filling up the blank, or swears fiJaely, he 
^ will be liable in the consequences of such conduct' 



WHAT IS A BEFUSAL TO TAKE IT ? 178 

In thew circumstances, the Court held that his name ought 
to have been expunged from the roll ^ 

The folbwing case occurred under peculiar circumstances : 
The trust-oath having been tendered to a person on the roll, 
who said he was willing to take it, another freeholder propo- 
sed that certain interrogatories should be put to him ; and upon 
his refusing to answer them, he was struck off the roll, but 
continued to vote under protest. The trust-^oath having been 
again tendered, the president refused to allow it to be put, as 
he was not on the roll. He afterwards applied to the Court 
of Session to be replaced, when the gendeman who had ten- 
dered the trust-oath, appeared, and stated that the proposal 
of the interrogatories was the result of a previous concert to 
, screen the other from taking the trust-oath. Of this aver- 
ment the Court allowed a proof, which, however, afterwards 
failed ^ 

It is not in all cases essential that the oath shall have been 
actually tendered to the individual, in order to authorise the 
striking him off the roll, as having acted in a manner equiva^ 
lent to refusing to take the oath. In a case where notice had 
been given, that any one leaving the room, after voting for 
preses and clerk, should be held as having done so, in order 
to avoid the trust-oath, a freeholder, who left the meeting be- 
fore it was tendered^ was struck off the roll, as if he had ac- 
tually refused it ^. But, where a freeholder had left the meet- 
ing, before the notice was given, and, as it would appear, be- 
fore the choice of preses and clerk, he was allowed to remain 
on the roll *. 

In another case, after the choice of preses and clerk, a mo- 

* Macleod and Urquhart v. Rose, 12lh February 1790 ; Fac. 

* Anstruther Pateraon o. Elliot and RutheiiUrd, 12th Febmaiy 1791$ 
Sup. to Wight, p. 89 ; Bell, p. 365, ei teq. Mr Bell says the proof was 
before answer. 

' Tumbull V, Carnegie, 26th February 1796; Sup. to Wight, p. 86. 
FoL Diet ilL 422. 
« Macdowal v. Maxwell, 24th December 1790 ; Sup. to Wight, p. Sa 



174 OF THE TRUST-OATH. 



/ 



tioQ was BUultt for certain freeholders lo take the truaUiath, 
and one of these parties left the meeting, after having voted 
in the choioe of these oiBcers. On the one side it was aver- 
red, that this individual had left the meeting before the mo- 
tkpi 'ibr takii^ the tnist^iath was made ; whilst, on the 
other, it was aaserted, that he left it upon that motion btmg 
made. The Court ordered him to be struck off the voU ^ 

A person who is enrolled, in virtue of his wife^s estate, is 
not bound to take the trusUoath^ He cannot swear» m tesms 
of that oath, Ihat the lands belong to him, and are Ina own 
proper estate ; and it oould not have been the intention of the 
IflgUature, in passing the act 7th Geo. 11., either to deprive 
husbands of a right confirmed to them by former statutes, or 
to involve lliem in perjury. 

The person who takes the oath swears that the estate is ac* 
tually in his possession. Where the qualification is rested on 
an estate, of whidi the property, as well as the superiority, 
the liferent, as well as die See, belong to the voter, the po ss oB 
tton aHuded to in the oath, of ooune means the actual natn- 

^ Jhaahu «k DsTidaim, 80th Jinusiy 17M ; Settuai Papers, and Fac. 
CdL The following is a note on the Session P^ets of Lord Piesidsat 
Campbell : — * The cases of Mungo Campbell and Urqnhart of Meldrum 

* were decided upon a just construction of the act of Parliament Where 

* a person comes to meeting, and votes for preses and deii, he thereby 

* acts as a freeholder; and the fidr presumption is, that he means to pro- 
*• ceed fiulher. If not stopt by putting the trost-oath to him. In the case 
' of Rose of Aitnoch, he did not rote £ar preses. I did not, however,^ 
' prove of the decision in the case of Rose of Aitnoch. The respondent's 
' construction would make the act of Parliament so fiu* nugatory. It ii a 
^ fraud against the law.— floilsa Defect is in law.— AndMrndL We csn- 
*• not go beyond the net. Smlmfmu Contrary. Pxtiumptioii ^ that, when 

* he votes fa preses, he means to do more ; if go to the strict word, he 
^ has no oociaion to go away. May say he does not mean to vote.-^JIodfc^ 
^ «i0s. Sameb^ It ou^t to be mentioned that the inteilocutor in the case 
of Rose of Aitnoch, here animadverted on, was altered by a subsequent 
{iidflmant. 

* Mackenzie v. Mackensie, 23d February 1811 ; Fac. 



y IB FOSfiESSLOK. ? 179 



nl fsmBmom.ot tbe^landBiby^ the eleator^-ior by his teiuaiU/ 
Bill fiBitaiii righls.jEurejQapahleiof aibriiing a vote, which do 
iKil^dhpitiif^biiAttimlpoaBeMaoo; Thus thefiar of apit».- 
perty liferented by another, is entitled to be enroUed along 
vith'tlia iiferenler^ aod.b adnutted to role.in hisabsenee; 
jci wUfe the hfiatenter. lives, the natural possession of the 
Bar: isi ssBduded. Ia such caies, the >poBBessbn required by 
the irnst'OSlhy and by the act 1681, is merely such as the 
GMie.adniU of. 

Id thecase^of a superior^ where the reddendum is of an 
duMvy-JDature, and payable si petaiur iantum, it cannot be 
naiotouMd Jhat he 13 <not in possession, although he never 
levies suob duties. The inanner in whieh- it is oompetent'to 
fiedMldeoi to establish want of possession, ahall be afterwaDds 
oomideiiedi 

The peraoatakii^.'the trust*oath also dadares, that he 
haa-noi^en any- pronnse or back-bond other than appears 
fiDomlbe ^e^ in; sedisponing the lands- on which be votes^ 
or £sr making the sents or profits forthcoming to the use of 
any other person. In one case,, where a father had disponed 
OBttauklands to.his son, who, after obtaining a charter jfrom 
the0p«n,.reooni«yed..the. property ta his father, retaining 
the auperiocity, it was held to be fatal to the daim of the son 
to he ennolkd, that a claimant must be in a condition to swear 
that he haa not made any »dispoation of the lands, or promise 
to that aflSset, other than app«trs fiom histitles^ In a sufase- 
quenti case, ^ere the light had been constituted predsely in 
the asme manner,, but the obligation to reconvey the proper- 
ty appeared &om the titles, the quahflcation was sustained, 
these beii^ 00 room in such a ease to urge the objection'On 
thatrust-oi^^ 

The persoo taking the oath farther swears, that bis * title 
< to the lands is not nominal, creat^, or reserved in me, in 

> Freeholders of KineaidfaiMliire «% Burnet, BOth July 1745 ; Fale. 
* Foitester and others v. Fletcher snd othen, 0th Jsnuary 17M; Fsc. 



176 KOBflNAL AKP FICTITIOUS 

^ Older to enable me to vote for a member to tetwe in Pailia- 
^ mcnt^ but that the aame is a true and real estate in me» far 
' my own use and benefit, and for the use of no other person 

* whatsoever.^ 

The carcumstances which have been brought forward as 
constituting the objection of nominal and fictitious, have been 
Afferent at different times. At one time this objection has 
been maintained to depend on the unsul^tantial nature of the 
right, in a pecuniary point of view, and to mean, that theie 
was, in reality, no estate in the claimant, owing to the soialU 
aessof the return which he drew from his right At another, 
it has been mixed up with an inquiry as to the nature of 
those rights to which the elective privilege was attached by 
the Iq^slature ; as, for instance, whether liferents of moe su- 
periority were in the contemplation of the legislature^ when, 
by the act 1681, the privilege of voting was con fe rred upon 
liferenters generally. In the course of certain important casta 
which depended in the House of Peers during the Chancel- 
lorship of Lord Thurlow, his Lordship took ocoasioit, in 
more than one instance, to express his views of what consti- 
tuted this objection. In one of those cases ^ he observed, 

< It seems, therefore, upon every question of that sort that 
^ arises before the Court of SeS«on, the single pomt for them 

< to try is, not what is the extent of the estate, but whether it 
^ is vested in the grantee iona jSd?, and is a true and real e«- 

* tate for his own use and benefit only, and for no other pur* 

* pose. For, if the ji^ diaponendi remains in any other per- 

* son, it is in vain that the parchment conveys the right to the 
^ grantee : For the real use of the estate remains in another, 

* and that objection is now competent.^ And again, in 
ther case, his Lordship thus expressed his views : < It is 

* at the bar, that runninal and^fiditkms were terms undefin- 

* ed : I define it— the not being really the man he describes 

> Case of the Honounble William Elphinstone, ittf^ 
* Gaae of Sir John Macphovon, k^m. 



INVESTIGATION Ot NOMINALITY. 177 

< himself to be. The counsel who said so, did himself define 
^ it in the next sentence very nearly, by aUud agit aHud #j* 
^ muiai. He produces titles, which, on their face, import to 

* convey an estate, but he has obtained them under circam- 

* stances which, if disclosed, would shew that nothing like 
^ audi a conveyance was in the contemplation of the gnuiter 
^ or grantee.^ 

The question which has now nearly superseded all others 
on this sufcgect is, whether the vote has been conveyed under 
such drcumstanoes of mutual confidence between the granter 
and grantee, as to render the latter subservient to the wishes 
of the lonner in the exerdse of the elective franchise, and to 
make it incsumbent on him to abandon his right, when this 
may suit the jdeasure of the donor. 

Before, however, proceeding to inquire more particularly . 
ooDoermng the various circumstances from which, singly, or 
taken coDjoiBtly, it has been attempted to infer the quaUty of 
nominal and fictitious, there is a preliminary point which re- 
quires attention, relating to the means which a meeting of 
freeholders, or the Court ct Sesnon, are entitled to employ in 
mvcatigating the existence of this objection. 

About the time of the general election in the year I'TSS, 
die quescion occurred, whether it was competent to employ 
any other means than the trust^oath for investigating the qua- 
lity of nominal and fictitious. This point arose in a case 
whore die eknmant rested his qualification on a liferent of su- 
period^, conveyed to him by the Earl of Panmure, tiie feu- 
duties payable by the vassal being only ^xpence and two- 
thffda of a penny. The dumant took the trasUMith, and 
waaenioHed. In a complaint it was maintained, that the 
quaiificatioQ was nominal and fictitious; and the following 
particulars were referred to hb oath, in proof of this allega- 
tion : Isij That it had been transacted between him and Lord 
Panmure, that he should aooqpt of the liferent, for the single 
purpose of creating a vote, in order to support his Lordshfp^s 



178 NO»|INAL AND FICTITIOUS. 

mk^^ Aithnermi}^ fimm* H, Thm: M, or soon aA^r, 
obMimig ^^cppvy^ywac^i be had granted a back4)ODd^ ini»- 
aTe^ o]q .«>|Qe oth^ security ki. wxiling, obliging hiinsdlf to 
dfiQ)idf»>i9 bia.Lord«hipV favour, when req;^iii^. 9dj That 
h^faid.: no. value foip the conveyance^gnmled to bun,. Uh^ 
Tbal^li|s received no revenue or profit of any lund in. conse- 
quence of that conveyance. Bth^ That it had been made out 
at tbe.c{X{)^ce.of Earl Panmurc^ the .grantor ; that the daim- 
ant Milb^.had. bertowed norintended to bestow any expence, 
ia ord^r ^to render, it i^^ual ; that, the titles never, had been 
SQ.tnuch a$ deliveced to him.; and that be.took no ooncemin 
the. Qomplajint then depending agaisat him ; and, 6^ Thai 
he under«tQ9d himself, to be bound in consMUce, and as an 
hcmest man, to renounce his liferent at any time Lord Pao- 
mHre^fll^u}^ ask, it of him, 

It wa/|.ob|eRted to the putt^^g of these interregatories, that, 
haviiig tak^n the trust-oath, the isb^naal was not; boumL to 
answer any other quesUpns, It wais anwered* that the tmat* 
oath was not. intended to supeniede special intetvogaloriei* 
Th^ Comt sustained the oomp^ncy of putting the quaakioiis 
on oath, and, on the daimantdlscUnifikg to answer, held ham. as 
oonff^Bsed^ and ordered him to be struck off the idl \ 

A si|a[|i|ar course was adopted, and * ^wIat x^wdt AiUpwedf 
in apc^tlp^i^ case, d^c^ed about the same. tame^. in- wUph tha 
only ein^umstf^nce of diffieqence friffpithe.pmcfdiilgcase was, 
that it do^.i^ot appear, that the oath of poiqmm had. bean 
tendc^n^, to the daivuint '. 

In a third ca^ also determined about the same petjod^ the 
trii^t-oatb had not .been offered to the plaimant^ and he ha»- 
ving answ^^ the.. special int^pj9gat9ri0s, his qua l i fi o a t km 
w^ hftld to be nominal and fictitious, and he wm orderad 4ia 
be ^Mplfs off the roll ^ 

1 Skene v. WalUu:e, 9tb Mardi 17M ; Wight, p. 2S2. 
« Row of laverdMsir i Wlght^ p^ 9U.. 
3 Js^a Johnaton ; Wyglit, p. 36% .Note. 



INVESTIGATION OF NOMIKaOTY. 179 

ThoM three caaeswere all revi^rsed, on appeal^ on- thd sama 
day ^; and^ wea thu» held to be decided at that time, that 
it wtt» net ccMnpete«t for the Court of Seaskm to order speeial 
questions to be pat- to the elaimanti with the view of ascer^ 
taining the fictitious nahire of his right ^. 

But not only was the effect of those reversals held to be the 
exclusion' of interrogatories, but the idea was taken up that 
those judgments went the length of estabhsfaiflg the trust-oath 
as the sole criterion of the quality of nominal and fictitious, 
so as to render it incompetent to assign that charac5ter to a 
qualification, from a consideration of the situatioti and mutual 
relation of the parties, and other circumstances 'of the case 
Indeed, for a period of twenty years after those reversals, we 
do not find any reported cases involving the question of no- 
minal and fictitious. The great increase of votes of this de- 
scription, which was the consequence of this security from 
challenge, unless by the trustroath, led at last to a change 
in the views of lawyers on this point. In 1787 we find se^ 
vera! cases, in which tbebtjection of noroinality was sustained, 
from a consideration of the general circumstances of the case; 
Thus, in one instance, an obligation having been obtained by 
an entailed proprietor from the heirs of entail^ not to chaU 
lenge the making of liferent votes- on the estate, and one of 
the qualifications having been granted to the curalor of 
some of the heirs upon his signing the oUigation, his 
qualification, the reddendo of wfaieh was only 6^d., was 
found to be nominal and fictitious, although it -was argued, 
that the tf ust-oath was the sole criterion j and no regard could 

1 9th May 1770. 

* During the period in which the idea prevailed tliat spedal intermga'- 
torias could not be put« qualifications of a nature considered fictitious 
greatly increased; and the voters on such rights being in the haMe -of ta- 
king the tnist-oath without scruple, an attempt was made in' l7B&Ho' con- 
vict some of these voters of perjury in the Court of Jusfidarf . Lawton 
ofWestertown was actually brought to trial, but was acquitted by the 
Jury, 27th June 1786 ; Bell, p. 281 ; HUtee, voL i. p. 361. 

m2 



180 NOMINAL AND FICTITIOUS; 

be had to the extrinaic circumstances attending the constitu. 
tion of the vote ^ In another case a liferent qualificaticm, 
also granted by an entailed proprietor, was decided t9 be no- 
minal and fictitious ' ; and an appeal having beetf ent&ed to 
the House of Lords, the cause was remitted to the Court of 
Session, ¥rith instructions ^ to hear parties farther thereupon, 
^ with liberty to receive such new allegations and evidence as 
^ the case may require V 

This judgment of the House of Lords evidentiy sanction^ 
ed the receiving of extraneous evidence, in determining the 
question of nominal and fictitious. But still there was. no ex- 
press authority for the mode of proceeding by special inter^o- 
gatorieSf which had formerly been found incompetent in the 
House of Peers. In a case which occurred in 1788, the 
claimant voluntarily answered certain questions put to him 
by the opposing freeholders ^ ; but it does not appear that 
this mode of inquiry received the full sanction of the Court 
on that occasion ; and in the case of Sir John Macpherson, 
which was decided the following year, the Court of Session 
found that it was incompetent to investigate the matter in this 
manner ^. The claim was there made upon a liferent of su» 
periority ;. and in order to shew that the qualification was no- 
minal and fictitious, the claimant was called upon to confess 
or deny,, 1^^, Whether the conveyance of the lands contained 
in Sir John'*s tides was not made out without his previous con- 
sent or knowledge ? At least, whether Sir John was not soli- 
cited by the Duke of Grordon,, from whom he derived his right, 
to accept of a freehold qualification ? 2d, Whether the exi- 
pence of making out the title-deeds was not paid by his 
Grace ? 3. Whether those title-deeds were delivered to Sir 

' Macdowal v. Buchanan, 20th February 1787* 

* CampbeUand Tod v. Elphinstone, 20th February 1787. 
' 30th April 1787. 

* Lindsaj o. Biyadale^ 6th March 1788; Fac. 

^ Forbes v, Macpherson, 6th March 1789 ; Fac. 

4 



INVESTIGATION OF NOMINALITY. IBl 

John before his enrolment ? or, Whether they were in his 
pofisesrion at any time previous to this period ? 4A, Whether, 
when l^ was informed of the conveyance, he thought himself 
called upon to defray the expence of defending his title in the 
Court of Sesnon, or elsewhere ? 5i&, Whether he did not, 
when he accepted of this conveyance, and does not sdll, oon- 
flider himself as in honour bound to vote for the candidate 
who may be patronised by the Duke of Gordon, and to re- 
nounce his freehold qualification at his Grace^s pleasure ? 

The Court of Session found it to be incompetent to put 
those questions; and repelled the objection of nominal and 
fictitious. This judgment was, on the motion of Lord Chan- 
cellor Thurlow, reversed on appeal, and the claimant was or. 
dered to confess or deny the facts referred to him ^ 

Since this judgment of the House of Lords, the practice of 
putting special interrogatories, when thou^t necessary, to in- 
vestigate the real nature of the qualification, has been con- 
stantly followed, both in the Court of Ses»on and in the 
meetings of freeholders. If the claimant refuse to answer, 
he is held as confessed on the questions. 

Although the remit in the case of Elpfainston *, authorised 
the receiving of such ^ evidence as the case may require,^ it 
was consdered doubtful whether the alleged nonunality of a 
qualification nught be established prout dejure ; «. e, by every 
kind of evidence, including the testimony ct witnesses. This 
point was, however, set at rest in a case where an offer of 
proof proHi dejure^ including the parole evidence of different 
persons, was made to establish the nominal and confidential 
nature of a qualification. It was argued, on the one hand, 
that, by the act 1696, trust cannot be established by parole 
testimony ; and, on the other, Uiat a nominal vote be'mg of 
the nature of a legal fraud, a proof by witnesses must be ad- 

» 9th April 1700. » Supra, p. 180. 



182 NOMINAL AND FICTITIOUS. 

mitted. The Court flOstaioed the ooinpetency of<thef|in>. 
peaed €9id#iice ^ 

fiverjp^tkind of cvideiice is ibex^forefrnwooropetent tf»«i- ' 
vestigatethe alleged nbounal and confideMial ^ noUire ^ a 
qualiBoataen, vthefber tbtft evidence be «ffo«d^ by thetca^a. 
jainatbn of the party, by wntiAgs, or by ^HtacteeB. {But in 
«o far '«« regards the proof by witnetBes, that lund'ofievldMloe 
iB<iiafit tfbr a eo^rt of fre^iolders, ^ho4iave no ailthaRtytte 
admkiMleroaths nr cite 'iHilQeraes, and Aerehttj lougbt to be 
resenred for tthe Court of Sesokm, when the case "diali have 
been bnni^t into »that Court by complaint '. 

The statute IClfaNGeo. II. sect. 4^ proi«Wk6 4hat eviiy cam- 
ptaiDt to the Court of Session agaisBt the enrobndnil'of »fier- 
son < whose iitk «haU be thought liable to objection,' must be 
brought twidiin four months, otherwise the individual shall 
. rannm on the roll, until- snch an ateenalion duJl triie place in 
his cifomnBtanoea'aa to warrant his being struck off. :ft£ler 
it had been firmly establtdied that the objectbn of nominal 
and fictitious might be proved by other meand beades the 
trust-oath, it came to be a question, whether the time wicbki 
iriitoh those ndier anodes of proof might be used, wms Uaited 
by the above d&Qse of the act 16th Geo. II. ^Oir'tfaroae 
hand, it was maintained, that an equal latitude 'OUgfat take 
aBowed in this reqf>ect as with regard to thef trast^mth^ • wbidi 
may be pot at any time, however dietaot,' after enrohnOMt; 
and 'that the e«pi«sMon <'titie' in the ab«re clause, Tci sH eA 
only to the titte-deeds. On the other band, it'^M argued, 
lliM! the dause clearly related to such an obgectiaii as tiMf of 
nominal and fictitious; that the Court had' no juris^Kctaon in 
this ttlatter ; except in virtue of that act ; and that, itbet^Ofe, 
the limitation of (bur months must neeessarily apply- in a 
case where a person who had been several years on the' toll, 
but in whose circumstances no alteration had taken place, had 

> Ferrier v. Morehead, 22d December 1790 ; Fic < See p. 47* 



INVfiSTlGA^lOK* OF NOWlilALlT Y . tfiS 

been strtick off ftir "tet^OnglokHHv^r <je)rtaita qu^^tioris tebu 
tire to faifi quaHfioaftion, l)ie Court, bh the gtound ^at the 
djjeeuctsk was really niiflde to the title of the daimkht, 'and 
that the limitatibii of tiieact mfust therefeire apply » or- 
dered hhn to be restoored to die i^II K In a silb^'tfeiit case, 
however, the Court ftond that it sras conipettot to bring for- 
>rard the ol:^eetioii of nominal and fictitious, after Foiir months, 
even altboagb no change 6f circumstances had taken place ^ 
But after this, the former of these two cases was affiilned ', 
and the latter was reversed m appeal *. It is now, therefore, 

' Prin^ V. Freeholders of Roxburgh, 8th ^December 1790. — Noie of 
ilf opimitm qfLord Pretideni CampbM, from hia SeMtion Faper$* *• Imo, Com- 

* pelcBcy of Indstliig in objection of nominai and fictitious after the JMurty 
*Ib« flood terniontte on tbe roll uncfaallenged. Itisanol^jection toiMi^ 

^ and OB this ground it was found, that oath could not be put before choice ^ 

* of preaea and clerk *. See case of Sir Ludovick Grant and Archibald Duff. 
*■ Btcb one who has no title at all maj vote fbr preaea and derk. Some 

* ndea neceaHrj to be eStabBahed. One is, that after fimr months the 

* qneaftidii of title ia mt rest, ttnleaa alteration of drcwihstancea happen, 
' and e«en then certain fonna required belbre he can be derailed. Ua- 
^ kaa we adhere to thoae rules confusion will ensue ; no remedy after four 
« months but tnist-oath. Objection of nominal ought not to be pushed 

* laa fiff. If party was once in poaaeaoon, and afterwazds ceased to be so« 
*M»wMffionsDAndbjaltiBniup^ Butnoauch 

* tUag sBqged faesK^ 8^ ndnntea and interhwutova annexed* Nor, isp* 
' deedy was anj oljeotion lodged. See case of Melville of Greigston in 

* Fi&afaire^ where an alteration of circumstances was alleged.— JWtc»- 

* Clerk. Cannot get over the rule of four months; bat fiu^t of possession 

* maybe inquired into^— Drtyiftoni. Boubt upon argument in p. 6, and 7, 
' of anawer&^JfbM&Mfilpi What if I produce back-bond. Intemgatoties 
*' noir put in {dace of oailL^^Sil^frove. Concluded by the four months. — 

* MgnderlamL Bound to assert at every meeting that hia title is not noi. 
< minal — Cannot distinguish between title and possession.—. 

* Bmiles. If aatisfied with judgment of House of Lords, all these nominal 

* votfers would have died of themselves. If these oatechSams not auffictent, 
^ inU find out others.— -BsdMBr. No alteration upon the conatitution of 
^ the vote.* 

* Mihie «. Freeholders of Aberdeenshire, 31st May 1791 ; Fac 
' ftb McMh 170& * 1793. 

• Tlilinowaltflndbsr37tbOco.IU.cl98.^-SMp.l71* 



184 NOMINAL AND FICTITIOUS. 

settled^ that, after four months have ehipsed from the date of 
enrolmeat) and no alteration of circumstances has occurred, 
no other means than the trusUoath can be resorted to, in or- 
der to establish the objection of nominal and fictitious. 

The same rule has been established with respect to the 
proof of want of possession, on the part of any person who 
has been enrolled. Within the period of four months fron» 
such enrolment, the freeholders are entitled to put such inter- 
rogatories as they think proper, to ascertain the fact of posses- 
sion. But after that time has elapsed, and where no chaqge 
of circumstances has taken place, the only competent mode 
of investigating this matter is the trust-oath ; so that, even if 
there be reason to suppose that there was an imperfect pos* 
session at the time of emohnent, yet, if no alteration has ta- 
ken place, and the four months are elapsed, it is bcdmpetent 
to have recourse to any otlier remedy than the oath of trust ^. 

Having tlius pointed out the methods by which the objec- 
tion of nominal and fictitious may be established, we shall 
proceed to consider those circumstances in the constitution of 
fi qualification, from which it has been endeavoured to infer 
this quality. 

If some of the expresuons of the trust-oath were oonttder- 
ed literally, they m^t be regarded as striking against every 
qualification which has been acquired expressly fi3r the pur- 
pose of afibrding the privilege of voting. The elector swears, 
that * my title to the said lands or estate is not nominal or 
* fictitious, creaied or reserved in me^ in order to enable me to 
^ vote Jbr a member of Parliament,^ The interpretation, 
liowever, which has been put upon those expresflions, and 
which is borne out by the words of the oath which follow, is, 
^at the tide shall not be nominal and fictitious, and also ac- 
quired for the purpose of conferring a vote. If the sulgect 
is a true estate, and the right in other respects such a one as 

^ Livingston r. Dundas, February 1791 ; Bell, p. 387— I>idnion r. Wood, 
2ad February 1819 ; Fac 



WANT OF VALUE. 185 

oooftn the privil^e of ToCiiig,' that privilege will not be af- 
faded by the dfcumstanoe, that, the right may have been ac- 
quired fer the puqioae of exercisiiig the dective fraoduae. 
This point was dedded in the first reported case^ in whidi 
the ofajectioii of nominal and fictitious appears to have been 
brought fiorward. A father had disponed part of his estate 
to his ddest son, who gave a subfeu of it to the granier ; and 
the objectioD, that this arrangement had been entered into, 
on purpose to give the son the right of voting, was repelled K 
The same doctrine has been repeatedly recognised in subse- 
quent cases \ and is the sde foundation of that extendve traf* 
iSe ID votes which has so long prevailed. 

The want of value in the subject on which a right of voting 
is daimed, does not of itself render the qualification nominal 
and fictitious. If the qualification b a superiority, it is the 
rig^t of lofdship in the lands whidi gives the privily of vo» 
ting, and not any emolument which the superior may draw 
fifom the vassal Hence, a superior, who had feued out his 
lands^ and disduuged the feu-duties for ever, was found enti- 
tled to vote, it being plain that this method had been fallen 
on merdy to evade the legal necessity oi feuing at a compe- 
tent avail'. On die same prindple, a superior, obliged by 
his charterlo pay to the crown L. S4:14:8 Scots of yearly 
feo^duty, and recdving only Id* Scots of blench-duty fipom 
his vasasl, who, however, was bound to relieve the superior of 
die crown fisu-duty, was found entitled to be autdled \ In 
Uke manner, a qualification claimed by a superior, who re- 
oeived an dusory feu-duty, and whose casudties were taxed 
at eluaory sums, was sustained ^; and the same judgment was 

> Freefaolden of Kincardineshire o. Burnet, 30th Jnlj 1746 ; Falc 
* Campbell and Grshsm «. Muir, 6th February 1780 ; Fac. Gnnt v. 

Gaaipbeil, SSd February 1700 ; Fac Macdowal «. Cniwford, SOth Feb* 

naB7 1707; Fac 

' FieehQidera of Bumfiriea v. Ferguson, 30th July 1746 ; Falc 
' Stevart and others v. Oahrymple, 28th July 1761 ; Fac 
Forrester and others v. PleWher and otberS) Oth January 1756 ; Psc 



W6 NOMINAL Alrty PKJTltTIOUS. 

^ii4i# #Mr « SMidMydf Mily £s.»#d^ and twide that torn 
m diii^tfiftiy 'tifliriri ^tftid yngfohir su cjc u w c im ^ In shott^ jt b 
i^oite MtiM thitrttie figbt of Voting tMy be ODftiBncd by 
MiMr»i4ty/)flft»«MKiaItiM'imlkid^ javofitB of wlihih>Me)dto- 
'giiittr lAuM*y ; ^aMMHkgh,' MlcAiMedly) tbs iranl of wiue 
Miy bftv« jts %tighe; wben tidien in crajtinctkm wiiii >olber 
^iMuttNiniiiCes^ tnidbig to show that afigfat isnominid aiid fie- 
/itbus. 

lAlfhong^ i«4Mi6 liAis long beon aeCtted, uhat thevight of 
y^^Stafg dottltot deflMid dn the peMBnry BdvmntMge ^i«b«be 
elector derives from his eslate, it was^ far n couiderableAinie, 
VMOOTtittn utethei^ that liniileld right, coniiatiiig of m liferent 
i9f mere MfMrfatrity, » diBtingviidied fiom a hStrettvi {ito^ 
|ierty held of the crown, did not ome under the denombuu 
«km of^ioiiinid and floMoos^ and whether it waawst intepa- 
tAe of «oitfeitiii^ che elecdw frandme. QtmtiaiM'of thiaoa- 
ture- havo geuekvdly teen asoKor less mixed up with an in* 
qtdry, whether die ri^t has not also been eonfidentialt or 
ooiriwyad <und6r a «aa«t( iiofciMUiding> between the . granter 
tfid gtanteoj asweH aa hairing also been of too liasittid'oriai* 
p«rfkft a* llamra lo give the priril^ of vating. The aoMnt 
liff dw pecinaiffyeniolument derived by the lifcrenterhna«lso 
btttk ahntMt always btonght into loonsideration. 

It may be prafier! to 'give a diort view of th^ biatavy of 
UftrMlt 'V^tes. 

'file ai0t 1661, e. as, is tfaeifirst wbiah-qiaeiaUy confers the 
prititege of voting on< liiWenters ;• mA- die lifewnters asention- 
ed are those r holding of the king, and ^ whose yearly rent 
^idsth anmatit to ten^haldeia of viotuali or L< 1000> all feu- 
» datfasH hAtxg deduct^.' The atamnt of thia qtialificHlbti 
would evidently exclude by £Eir the greater number of tiie 
liferoat votes o£ tl^e present day ; and indeed appears to refer 

« tilntey vt IMy^ldtj tth Witch ITMi t I'^sc. 



LEBBRV>N1?S OP 8UP£Ri<»B4TY. IVf 

ii^jr 40 iyBnBtttoof)^iwfttff^<hdLd of t^ irbMi^lSgl, 

a £Iy«fter!gilnag thoicight of •voting^otbeee'.iiifeft-iii^pm. 
perty or supenwtyy.ttilddKMingof tbe<ki«g,-faMbtf ^eonfers 
titioci 'appciimiid'rheirs, Mi^ in jpotrtpoiam, by virtue of 
< their pndkKcaaMr'fi .infeftmefrV of tbelioldii^ireiileiU,i «Ad 

* %tihiHiwitftMWiniil, >and Itkewiae-^^^iMtfr^ oukI JiuaUoids, 
' ilbr ihe-.fi«elRyldb «f' their ^ves^ -or havii^ nght to a Jifineat 

* by the courtesie of the saids hfoBeHter^solaime their. Tote, 
^ uth a wajic a »the ifiar- shall -have wte.** 

^%eaeii8e' ki 'wirieh' the ^roid ^ecooters^ waS'Weed in^.this 
m t til given rise to much diffeffenoeef i<^iiioiL : By/flome 
ii-'hvbeeii bought to iwler* only to lifinieiits by vtaewa- 
Amintamnky setlkemeBts, a kind of right of a highrt^^aar 
ture-dian a hferent by confititutioD. Some, have dauhted 
arhetfaery at the date of the act l^l, ^ucdi a. tight; ^eotist. 
eA aa a fiftrent cf mereBuperiority. Others^ agaiUt .Juire 
euppoaedy'^hat aa, by that statute^ Ihe priifii^c^'of; voln^ 
mtm iMnriied to eupenorily as wdl as to prapirty, the 
li&renterB aUuded to must Gomprahend lifbraateia hotk 4if 
hare aupeiioiity and of property. Without 'dataiHiiii^ to 
m\AAk of these -opiiiioiia the greatest weight ia to.be. attadied, 
it'sriH hetCBaugh to state that^theiDterpretataon of this staiate 
mast now bedfa^m firDmihedemionaaf ouc^aupreme^muts^ 
and .4IOC fioai any specuiaidvev notion Fsganiii^ what laay 
have heea the wbws af tihelegjabilure at Uie tiaie. 

The fihe^ffesenee of opiaiOB has- exiated wftfa reqpect to 
the vieaaiog of the expressions nonuBd and -fiotitioua in^ihe 
tnast^alh, asiappUed to Ufefeni quili6eatioBs. Ja « tba loew 
ofaonie Jawjpcrs,* ^Kwa^KpresaaDB were- fawMy^ intended fi^r 
the porpoae d£f duawatarini^lifhventa of .a^periol;atyr-and^f 
depriviag those possessed of such rights^ of the pnvil^^of vo- 
ting ; because the wixrds of the previous trust-oath of Anne 
were peculiarly applicable to trust conveyances, and when 
thoee wese gotten the, better. of, liferent qualifications still re- 
quired an efficient check. According to others^ tbe'«xpres- 



188 NOMINAL AND FICTITIOUS. 

«ions nominal and fictitious, were applicable generally to sudi 
lights as were not in reality what their titles bore, and had 
'no particular reference to liferent qualifications. 

But, as already observed, it is by turning to the practice of 
<iur Courts that we shall be able to determine what is to be 
lield as the law, with respect to the validity of liferent supe- 
fiorities; and we shall therefore take a short view of the re- 
ported cases on this subject. 

In the years 1760 and 1761 liferents of superiority, f<»med 
by constitution, the fees being vested in the peers from whom 
these rights were derived, were sustained as legal qualifica- 
tions in several cases ^. But about the time of the general 
Section in the year 1768, the Court adopted more rigid ideas 
with respect to queBifications, and, as has been abtady ex- 
plained ', fell upon the method of putting interrogatories, with 
the view of investigating their nature. This plan was fol- 
lowed in r^ard to a liferent of superiority, derived from the 
Earl of Panmure, the reddendo of wluch was only 6$d., and 
the claimant having refused to answer certain questions, tend* 
ing to show that the grant was confidential, and that he de- 
rived no profit from it, he was ordered to be struck off the 
roll ^ This case, and some others of a similar nature, were, 
however, reversed on appeal ^ and, for a period of nearly 
twenty years after this, we do not find any reported cases in 
which the objection of nominal and fictitious was brought 
forward. We find a variety of decisions in regard to life- 
rents of superiority taking place on one day in the year 1787; 
and, on that oocasbn, the Court decidedly went upon the 
prindple of rejecting all lifermts of superiority where the pe- 
cuniary emoluments were trifling, especially when that cir- 
cumstance was joined with other drcumstances tending to in- 

> Campbell and Gnham o. Muir, 5th February 1760 ; Fac Stewaxt v. 
Balrymple, 28th Julj 1761 ; Fac. 
* Page 177- ' Skene «. Wallace, 9th March 1768 ; Wight, p. 264. 
< 9lh Mfty 1770. 



UTFEBENTS OF SUPEKIOB.ITY. 189 

fer a oonfideDtial iiiideistaQcljiig, such as the ri^t being 
graotedinqppositiontotheprohibitioiiaofaQentatL ThuB,in 
two instances, where the Uferents were granted by entailed pro- 
prietors, and of small pecuniary value H and, in a third, where 
the feu-duties were 10s. and the casualties taxed at twice 
that sum % the qualifications were found to be bad. But, on 
the same day, a liferent of superiority was sustained as a valid 
qualification, where the feu-duty was L. 71 : 7 : 8 Scots, and 
the casualties were not taxed '; and another was also sustain- 
ed, because it appeared that the property had been separated 
from the superiority thirty years before, without any political 
object \ One of those cases, that of the Honourable William 
£lphinstone, in which the liferent of superiority had been 
found a bad vote, as coming from an entailed proprietor, and 
being of trifling value, was carried by appeal to the House 
of Lords ; and, on the motion of Lord Thurlow, was ^ remit- 
^ ted back to the Court of Session in Scotland, to hear par- 
^ ties farther thereupon, with liberty to receive such new aU 
^ legations and evidence as the occasion may require ^J" The 
view which his Lordship took, in delivering his opinion on 
this case.^ was, that the Legislature intended^ by the act 
i681, to give the right of voting to the slightest estate within 
the letter of the law ; that, under the trust-oath of Geo. II., 
the sij^le questicHi was, not, what is the extent of the estate 
but, is it possessed bonajidey and for the voter'^s own use and 
benefit ; that such an estate as the present, of only a shilling 
value, was a good qualification, although bought for the sole 

' Macdowal v. Buchanan, 90th Feb. 1787 ; Fac. Campbell and Tod «. 

Honourable W. ElphinsUme, as decided in the Court of Senion Mth 

February 17Q7 ; Fac. 
' Campbell v. Ingram, 80th Februarj 1787; Fac 
' Roebuck v. Cimningham and others, 80th February 1787- 

* Lament and Campbell v. Alston, 90th Februaiy 1787* 
^ SOth April 1787- 

* See Ludex^a Election Casea; Appendix to £]gin Case ; also Note-ap* 
pended to FacuUj Report of Orummond e. Adam, 20th January 181& 



poiiM^oflooiifidMt^ miMD' be<d€la«niwcbf])OHi tfaci genenlxtHte 
of! tb^ MUMa^Uofn N^ ftrtbiit steps weM aftorvBaisctabsa 
in lUsfCaiey Mt'BtplunstaBQr hamng ^eoiup hist/«ot^ . 

A^questicNS^ whitth^'Oesuned in the following^ycttL 1788^ 
1W& derided by4he^0<Mirt<^ Sesstmi' oni the> pnndplar. laid 
ddwii' by IiOrd> Tburbm The'<qiiaUfiesdoiH« whicbi was^ia 
liftteotof' superiority^erived-ii^Mn an- elder* brotfaeD, wiliua 
reddendo of only S&^Od.y'douUed'at the entry 4]f. liekmuiod 
rtllgula^slleee8ser»v was-atisUiiiied \ as it waa tbou^htllHl the 
ctflcumaUttoes of the case did' not establish the oziateDflejof 
any latent or implied trust in the claimant. In the subset 
quent caae of Sir John Maepherson, who rested hie qualifiGaf. 
tion on a liferent of supenority *of' small value, demed- firom 
the Duke of Goidon> the Court* of* Seasioo sustained the 
claim, and held it to be incompetent to put the interragato* 
riesi proposed 'by the opposite party, with a view to aaonrlaan 
whether a confiikntial understaadii^ existed- b e t iaee i > the 
granter and'grantee '. On appeal, however, the iatenaogplo^ 
ries were ordered to be answered '. 

In the year 1791^ opposite judgments- were given am -lbs 
same day with reqpect to the vafidity at two> liferent quali&> 
cations, obtained by diffiHrentpersoiiB-fromthesaniequarlan 
In the one, the Court- sustained die qualifiialie^bja'iniyK 
rity of<bne, after having previeuslj^ dMniUBed'tbilt<a d]|i|pDa> 
flition to the fe^ whieh had been obtaned^liy the rlrfwtffi^t 
the day befcxe'the eleetion, might be-ree^ved as-evideaoecf 
th^.^oiy^,/!d&.n«ture of the qqaljjficatinn, although not as oon- 
atiHitini^rfhe tide^and beiiigiO£, Q|ii|iiaii4iuit th^.all^^ 
a confidential understanding had not been subataotiHtodi^^ In 
the other case, however^ of whidt the circtnnstaiiees^are'fiaid 

1 Lindflay v. Drysdals, 6«di MwA 4rs»f Foe 

* Forbes and others v. Maqphenon, 6th March 1789^ Vm»b^ . 
'eth^A|»41<17M 

• Oteap VI Ifo^efaead,' lilik Februarf' 1701v( Belly p.'jldU 

2 



LIFSftSNTB OF £UP£EiOBSTY. Id^l 



taiMuce/bem sjiaskw^ the qualificatioii was injected by aiiiui^ 
jodtjF. of.qne ; the Judge^ dbaibddia difioreiitvicfriofrthn 
case from what he had entatained in the other, resting hid 
opinum fwAy our the ground, that the cUmaiRt waai the bro. 
ther of the conlidmtial agent of the grmimot the vote \ 
RecUiwing petitions Wiere presented againat tfaejuilgniaQls 
in both cases, when the Court adhered to tbat;!!^ theMlattec 
case, but altered tb«t in the former, 6ndteig both qualifioa« 
tiooa nominal and fictMous ^ 

In a case which occurred a few years aftenmcds, the oib» 
jectton of nommal- and ficdticMis. made to a liferent. of sup€fi<« 
ority, waa rqielkd, on the ground, thatan on^ous disposition 
of the fee had beesi obtained and produoed' on the day of 
decdon ; from which ground of decision, the inference seems 
to be, that the qualification would not otherwise have been 
sustained^. 

9cnreral years afterwards, it was decided thatia lifetvnt of 
superiority, yielding a feu^uty of L. 40 Sterling per anMinH 
bestowed gratuitoudy- by a father on. his seoond> son^ was a 
valid qualification, although it was argued that- the son must 
be entirdy dependent upon the will of the fiither in exercksng 

^ Ferrier v, Morehead, eod. dig. Ibid. 

* This final result of the case of Cheap v. Morehead, does not appear 
ftom Mr BeU*B account of it ; but I find it stated in the Session Papers 
onjbotli ndesy in the wbaequent cssa of Mara toa^fc Hone; I^/tB. 

3 Macs^U^l^. V, Honue, 10th Febxvffi^ ^797 1 Fao-^^oCf ^ Ae ivWv^ 
of Lord Pregkieni CampbeU^ from his Semon Papgrs* ^ Case of supei- 

* added fee. See Case of Morehead v. Cheap, 12th February 1791. Court 

* nnich divided tiiere, and the ultimate decision was erroneous. One who 
*hcsthf vbdeaststoinhim, bothlifei«ntaad.fite^ailtliiMigh.by«eiNnate 
^ titles, cani\ot be nominal ^ at least this is not to b^ pfresmnejixPad jn^ 
^ necessary to be year and day infeft in the fee, the preceding, titlc^ hsmg 
' fi^ood on the fiice of the record ; and the acquisition of the fee only ne- 
' cessary to remove an extrinsic objection, viz. that of nominal and flcti- 

* tiousH-^ttfHc».Ci!tfrlr. Clear that year and day not n^cj^ssa^y ; e,g, )a1^nt 
*• back-bond.* 



198 NOMINAL AND FICTITIOUS. 

the right of votiiig^ In this case, however, the value of 
the liferent was much greater than that of such rights usual- 
ly is. 

The next important set of cases which occurred, in* 
volving the validity of liferent qualifications, arose out of 
certain gratuitous grants of liferents of superiority, yielding 
little or no return, made by Viscount Keith to his nephews, 
the Honourable Charles Fleming, and William George 
Adam *. The claimants having been enrolled at Midiaelmas 
1808, by the freeholders of Soncaidineahire, petitions and 
complaints were presented to the Court of Session against 
these enrolments ; in which the oomplainers maintained^ that, 
from the whole ciicumstanoes of the transactions, it was evi. 
dent that the rights were nominal, fictitiouB, and confidential. 
The Court, on the 52d of December 1809, ordered the daim- 
ants to be expunged from the roll. Both cases having been 
carried by appeal to the House of Lords, they were remitted 
to the Court of Session, with instructions <* to hear parties 

< further thereupon, with liberty to receive such new aii^»- 

< tions and evidence as the occasion may require ; and with 

< liberty for the com^^ono*, in the Court of Session, to call 

* upon the defender to confess or deny sudi averments as to 
' the alleged nominality, as the oomplainer, by interrogafo- 

< ries or otherwise, according to the course cS the Court, shatt 

* call upon him to confess or deay: In ddivering his sent!*- 
ments in the case of the Honourable Charles Fleming, Lord 
Chancellor Eldon is stated to have expressed his opinion, that, 
if a bare liferent superiority afibrded a right ta stand on the 
roll by the law of Scotland, he could not timk that the cir- 
cumstance of its being granted betwixt rektions could have 
any weight, especially when, as in this case, the appellant 
had expressed his willingness to undergo interrogatories'. 

^ Bdflches v. Smith, 99th June 1809 ; Fac. 

* See Bell, p. 308, and Drummond v. Adam, infrth 

' BeU, p. 307. 



GRATUITOUS DISPOSITION. 19S 

When the case of Mr Adam returned to the Court of Ses- 
sion, a list of interrogatories was answered by him in a man- 
ner which amounted to a complete denial of all confiden- 
tial understanding between him and the gnmter; and parties 
having been again heard, the Court altered their fonner judg- 
ment; and found that Mr Adam had been properly en- 
rolled^ • 

It may now, therefore, be considered as settled, not only 
that a liferent of superiority, affording little or no return, con- 
stitutes a valid qualification, if there are no other cocum- 
stances shewing a fictitious or confidential nature ; but also 
that such a right, when derived gratuitously from a near re- 
lation, cannot be held, from that circumstance alone, to be of 
a confidential character. 

The circumstance that a qualificadcm has been obtained 
graimtoualy from the granter, is of less weight as afiect- 
ing the question of nominality, when the right has been 
derived from a relation, than where it has been acquired 
from a stranger; because, in the former case, the affec 
tion which is presumed to exist between the parties, will 
be hdd to be the cause of the gift ; whilst in the latter, there 
may be more reason to suspect that the inducement to a gra- 
tuitous conveyance was some tacit understanding, that the 
grantee would attend to the wishes of the giver in the exer- 
GJse of his franchise. Even among those not connected by 
relationship, however, this circumstance does not appear to 
be^held as sufficient qfUselfXo establish nominality' ; and in 
several of the cases which have been qoticed, we have seen 
qualifications expressly sustained, when derived gratuitoudy 
from relations. 

* Brummond v, Adam, 26th January 1813 ; Fac 

* In the recent cases from Renfrewshire, arising out of votes created by 
Lord £glinton, (See p. 211.>— Lord Chancellor Eldon stated the proposi^ 

tion generally, that a gratuitous vote, liUmafide^ is valid ; BUgh, p. 193. 

N 



194 NOMINAL AND FICTITIOUS. 

In aotjfke pf the ca^es .^jiiob have been adverted to, we have 
seen the, : CJMrt t4kiQg ipto vie w the drcumstance that the 
right wa3 derived from a peraon holding his estate under the 
fetters pt iu^ j^tail* The. manner in which the objeGtion> to 
a qufdififiati(»iKQilitl»s^uiid was&Bt stated, was, by urging 
t)iat the ylf^fyifflt truj^ had .a«^uired no right to the edtate, 
as his author was prohibited from alienating ^ ; or by main- 
tainii^. th^ th^ r^ht was defeasible at the instance of third 
partief , pin^. (u^ heJX of entail might cbiUenge the eanvey* 
anoe^. • 3Mt .sufh objections were hdd to be Jua terHi to 
greehQlder^, mss^ tbe chaUeage was. eampeteiit only to the 
heirs of ^Utfl,\^apd. the rights were good, until reduced by 
them ; and tib^. waa \u^ whether the ob}ecti<Hi ariftiag fiom 
the entail appeared from the titles produced to the fireehoid- 
crs^, or .cpuld m^ be diaoovesed from those titles*. 

Th|s priiieipie. of Jftf l^rtii is by no means peculiar to the 
object^c^; of. «ttail i jand when k ia ccmaideied that it has been 
sustain^ 4^ debaxriug freehidders fima statiag other objee^ 
do^^.of 49^rtf4i|.ku»d«^«ibe propriety of applying it in the case 
of entafla, will bj^fOD^e the more apparent Thus, it has been 
already ^^q^j tb^t firediplders axe^ on this principle, de- 
barred frojn 3t^ti9i^;^ !objetti0n of the mult^lication-of sa- 
periorsy ^ pijj^fliQn Urbich iTenders the ri^defeariUe at the 
instance of the yas(S|4^ and whii^ is held, to be only oampe*. 
tei^t to ^ vassal iu alprpper. action; but not in his capadly 
of freeholder,, if he ^should happen abo to be on the nA^ . In 
a case also^ isrhfire the charter^ by whidi certain ch^iUunies 
were grant^ by J^imes VI; to. the College of Aberdeen, boi« 

^ OuttpMl and Grahskn «: Muir, Sth Februuy 1760; Fac AfBrmed 
on Appeal, lat December 1760. 

* Houston V. Ferrier, 23d January 1781 ; Fac The olgection was 
thus stated in this case: ^ Exfade of the titles produced, thej only 
' cOBvej a liniited or qualified right, subject to a powr of drfwuimety 
* competent bj the taibsie engrosted xn thie ' charter to eveiy heh- of 
'entaiL* 

> Houston, svpro. * Campbell, ng^nu ^ See p. 61. 



OBJECTION OF ENTAIL. 190 

that these sobjectfi should renuun umted^aanexedj'and mortis 
fied to the said college for ever ; and where, notwithstandiiig 
ibis pnmsion, these subjects were sold to certaui p^rsonsr who 
daimed enrolment upon them, the objection stated by the 
fireebolders, that this alienati<» was null add void, was voel 
by the plea cijtss tertii^ and was repelled by the €ourt^. 

After it had been held that it was ju9 iertii to frocholders 
to state the objection of entail, with a view to establish' the 
defeasibility of the qualification, the obj^tiofot waa brought 
forward in a new point of view. It was conceived, that, al- 
though the freeholders might not be entitled to plead the dc^* 
fetfflbiiity of the right, yet chat the circumstance that tlie 
qualification flowed from an heir of entail,. ought to have ma« 
teiial influ^ioe in determining the qyestion of nominal and 
fictitious, once there would be strong reason to suppose^ tbat^ 
in ord^ to prevent the heir of entail from incurring a forfei- 
ture of lus estate, the voter would be under an obligation to 
reooovey, wh^ the right of the granter should be called in 
question by an heir of entail, on account of the conveyance* 
On this, amcHigst other grounds, the Court of Session ibund 
the qualification nominal and fictitious, in the case of the 
Honourable William Elphinston% already more than onee 
adverted eo; but it appears .in this case to have been distinct- 
ly admitted, even by the majority of the Court who decided 
the case, that < a conveyance from the proprietor of an en. 
' tuled estate might, in some instances, afibrd an unexcep- 
^ tionaUe right to vote^/ This case was remitted by the 
House of Lords, ^ to hear parties farther th^eupon, with li. 
' berty to receive such new aUegationa and svidenec as the 
* oceadon may require ;^ from which deliverance, there is room 
for an implication, thdt the Noble Lord (Lord Thilrlow) who 
moved the judgment, was of opinion that the circumstance 

* DtliTnple and othen i». Reld, 4th March 1T66 ; Fafr 

' Campbdl and Tod v. Elphinston, 20th February 1787 ; Fac. 

' See the Faculty Report of the case. 

k2 



196 NOMINAL AND FICTITIOUS. 

of the right having been derived from an heir of entail, was 
not per se decisive against the qualification. 

In another case already mentioned S in which the vote was 
derived from an entailed proprietor, and which was decided in 
the Court of Session on the same day as that of Mr Elphinston, 
although the vote was set aade, it does not appear that the 
judgment proceeded on the point of entail alone ; and, in- 
deed, in the opinions, quoted very fully in the report of the 
case, we do not find any mention of that point at all. The 
granter had thought to secure himself from challenge, by 
taking from the heirs of entail, and, amongst others, from the 
claimant, who was curator of some of those heirs, an obliga- 
tion not to call the alienation in question. This obligation, 
which it was thought would strengthen the right, was, how- 
ever, turned into an argument of considerable weight against 
its validity, because it bore to have been granted to *• increase 
* the < h^uence qftheJamUy^.'^ It will be recollected, that, 
at this period, tbere was a strong disposition in the Court to 
set aside all liferent votes of small pecuniary value, whether 
derived from entailed proprietors or not 

These instances of qualifications derived from entailed [RtK 
prietors, were all examples of liferent rights. In a case which 
occurred a few years afterwards, an heir of entail bad con- 
veyed over the fee of a superiority, for the purpose of mak- 
ing a freehold, and had qualified the conveyance by clauses 

* M acdowal v. Buchanan, 20th Februaxy 1 787 ; Fac. 

' It may be observed, that, in the memorial for the objecloTS in this 
case, drawn by Sir Ilay Campbell, the objection of entail ia very iBglitly 
touched upon. The ailment is to show the genenl nature of nominaUty, 
and the means of inyestigatlng it, and to prove the nominality of the qua- 
lification under consideration, principally from the effect of the obligation 
which had been granted. The author is the more anxious to explain thia 
and the other drcumstances mentioned In the text, because he has heard 
this case mentioned as an example of the oi^eetim tfmUaU being sustained^ 
eren in thafawmrabU drcuaukmoie of the heirs having gnmted an ofaliga* 
tion not to challenge. 



OBJECTION OF ENTAIL. 197 

of return and of pre-emption. The lands, which were held 
under a strict entail, had been ccmveyed by the Earl of Fife to 
a disponee and the heirs-male of his body, under the provision, 
that, in the event of the disponee selling this property, he 
should give the f^rst offer to the heir of entail of Braoo ; and 
that, on the failure of lawful hdrs-male of his body, the estate 
should revert to the family of Fife. The qualification was, 
under all the drcumstances, thought nominal ^ This case, 
however, obviously cannot be viewed as proceeding on the 
effect of the entail alone, because the clauses of return and 
pre-emption contributed to the result. 

A few years afterwards, a question came before the Court, 
under very special circumstances, relative to the validity of a 
liferent qualification granted by an heir of entail. The circum- 
stances were as follows: — In 1791, objections were lodged 
before the freeholders of Ayrshire, against a number of voters 
who had been enrolled on liferents acquired from Lord Eglin- 
ton, as heir of entml ; and, as they made no attempt to answer 
these objections, they were struck off the roll, as having no- 
minal and fictitious qualifications, in which proceeding of the 
freeholders they acquiesced at the time. In 1812, they agmn 
claimed enrolment on the same titles, and were rejected by 
the freeholders. One of them having complained to the 
Court of Session, it appeared, amongst other circumstances, 
that the late Lord Eglinton, his author, had, in the mean 
time, resigned ad remanentiam the property of the lands into 
his own hands, as fiar of the superiority, whilst the present 
Lord had made up his titles without taking notice of the life- 
rent ; and also, that the complainer had never levied the feu- 
duties until immediately before the renewed claim, when he 
received all the arrears at once. In the whole circumstances, 
the Court found that the qualification was nominal and ficti- 
tious ; but so far from this judgment having proceeded on 

» Souter r- Freeholders of Banff, 26th November 1808 ; Fac. 



198 



NOMINAL AND FICTITIOUS. 



the effect of entail o/bne, a majority of the Judges delivered 
an opinion, that that objection was not sufficient per se^. It 
IS true that the entail was not recorded, but that circumstance 
does not jnvlrent a sobstitute heir from irritating the right of 
the heir in possession on any act of contravention ; and al- 
though tho deed pvobaUy did not effectually prohibit an alter- 
ation in the < succession, at least in a question with third par- 
ties; yet the prohibition to sell or dispone, appears to have 
been duly fenced by irritant and resoludve clauses ; and a 
substitute heir could therefore have pursued a forfeiture 
against the contravener ; and he could have challenged the 

I Mo&tgomerie «. Cattanrt and Oswald, 8d March 1813; Fac The 
opinions of the Judges on the point of entail, were as follows :— ^ Lord 
Meadowbank. I think it (the vote) also bad in respect of the tailzie. 
There is no occasion to resolve the right of the contravener, but he may 
void the vote. Loid E^nton himself may void it, as he does not represent 
the cantimvener. The claimant hoUs at the will of Lord Eglinton, and of 
every Montgomery who is in the entail Any one of them may bring 
a reduction. I think, therefore, it is a defeasible vote, and I understand 
that a defeasible vote is void by the statute. There are many cases 
where that has been found. — Lord Bmmaiyno. Another question is, 
How for the mete drcumstance of its haviirg been derived 6iim an' heir 
of entail is material ? CerUunly where an heir of entail grants a liforent 
of part of his estate, it is a right wliicb is open to challenge on the part 
of the substitute ; but, so far as I have been able to see, the decisions of 
^ the Court seem to have again and again found, that that did not of 
itself afibrd an exception. It has been found to be jtw toHii, and that no 
pesBson has any interest in the fetters of the estate but the hein of en* 
tail. I conceive i\uX to be a fixed point. How for it may be an ingre- 
dient of nominality is a different thing, but certainly of itself it is not a 
sufficient objection.*-£onf Craigie. It appears to me, that a liferent on 
an entailed estate is good. It is, to be sure, reducible by the heirs of 
entail, but that is their part No third party has any interest in it. 
'mmLord Gknke^ I do confoss that, for my own part, I have great scru. 
pies about putting down the vote. I am quite of the opinion of Lord 
Craigie, as to the disposition's being by an heir of entail, being not of it- 
self sufficient, when stated by the freeholders. But it certainly implies 
a very strong confidence.* 

1 



OBJECTION OP ENTAIL. 199 

alienation, which was gratuitous^. The majority of the 
Court, who thought the objection of entail not per se suffi- 
cient, appear to have detivored their opinions in general 
terms, as if the entail had been effectual in all respects. 

The preceding question, it will be observed, arose out of 
a set of qualifications which were constituted twenty years 
before the question was brought into Court. A new ques- 
tion, however, afterwards arose, under the same entail. This 
entul not having been rocorded, and being, moreover, con- 
ceived not to contain an effectual prohibition against altering 
the order of succession. Lord EgUnton granted a procuratory 
for resigning into the hands of the crown a portion of the 
estates held under the entail, and obtained a charter to himself, 
and his heirs and assignees, in fee simple. Having thus altered 
the order of succession, he granted liferent qualifications to two 
of his brothers, and assigned to them the precept of this char- 
ter; and, about the same time, he sold to other persons the 
dominium utUeof a considerable portion of the entailed estate. 
Under these circumstances, when the qualifications which 
Lord Eglinton had conveyed to his brothers were challenged 
in the Court of Ses^on, as nominal and fictitious, on the 
ground that there must be a confidential imderstandUng to 
denude in case of challenge, — ^it was answered, that it was, at 
all ev^ts, clear, that Lord Eglinton did not believe himself 
fettered; that the risk of forfeiture for having conveyed these 
votes, was as nothing compared to tlie risk from the sales of 
the estate ; and that as the entail did not effectually bar an 
alteration of the order of succession, it was competent to 
change that order, and when so changed, to make the aliena- 
tion, because the bars of entail had no longer an interest to 
enforce the prohibitions of the entail. The Court found the 
votes good ; but it is plain, that, from the specialties of the 

* See ffi/ra, p. 303, for a part of the argument maintained by the par- 
ties in this case ; and also, p. 200, for a fuller account of the objectiona to 
which this entail was liable. 




800 NOMINAL AND FICTITIOUS. 

case, this decision cannot be said to decide the general ques- 
tipn as to the validity of an entail ^ It must be remember- 

' MoDtgomeries tr. Spleni, ISth Nov. 1813. This cue has not been 
reported ; and it may thecefere be proper to give aome fiffther aooount of 
it, not only on its own account, but as shewing the nature of the deftcta 
in that entail, which was, in the view of the Court, in the case of Montgo- 
merie v. Cathcart, rapro, and which was also partially under the view of the 
Court, in the subsequent important cases of the Messrs Crawiurd and 
others. 

Alexander, Earl of Eglinton, executed a deed of entail of the lord- 
ship of Eglinton, which was never recorded in the Regbter of Taibdes, 
but was recorded in the Books of Council and Session in 1749. It con- 
tained the following prohibitory, irritant, and resolutive clauses : * And, 

* in like manner, it is hereby provided and declared, that it shall be no- 
' wise leisome or lawful to the said Alexander Liord Montgamerie, nor to 
' any others of the heirs of tailzie above mentioned, who shall succeed 
' to our said estate, to sell, dispone, wadset, or in feu-fimn let, the said 
' lands, either in whole or in part, nor to burden the same with yearly 

* annualrents H&rents, or other real burdens, nor to grant tacks thereof 
« in diminution of the rental, nor to contract debts, nor do any other deed 
' by which the said lands and others fiireaaid, or any part thereof may 
^ be anyways evicted or burdened in prgudice of the present tailzie ; as 
' also it is declared, that all deeds done, or to be done or contracted, in 

* prejudice of the present tailzie, are, and shall be, null and void, in so 

* fkr as they may anywise operate, or be extended to burden the said 

* lands, or any ways prejudice the succession of his present tailzie^ 

' And fitfther, it is hereby declared, That, if the said Alexander liOrd 
*' Montgomery, or any of the heirs above mentioned, succeeding in the 

* Sse of the said lands, xnc who may succeed to the same, shall do or act any 

* of the deeds above prohibited, and shall contravene the present provi- 
*• sion, the person so contravening shall immediately lose, forfeit, and 
*• amit his right of succession in &vour of the person being or coming next 

* in phice to him, by the order of this present tailzie, so that it shall be 
< lawful to the next person who shall not contravene as said is, either to 
^ enter himself heir to the person contravening, or losing his right as said 

* is, providing it can be done without the burden of the deeds and debts 

* 80 done, committed and contracted by his predecessors, or otherwise to 
' enter himself heir to the person last infeft, &c. so as whichever of the 
' said methods best subsisting by law he shall follow, the said estate shall 

* be transmitted free of all the said deeds, debts, and burdens hereby pro. 

* hibited, and so as the deed and right of the contravener ahall be no bur. 

* den or impediment to him.* 

Under this deed, Hugh, late Earl of Eglinton, succeeded to his estates 



OBJECTION OF ENTAIL. 201 

ed, however, that although the preceding case of Montgo> 
ineiy v, Cathcart, arose out of the same entail as this last 

88 heir male and of tailzie of Archibald, the preceding Earl, his cousin, in 
preference to Earl Archibald's own daughter. 

Earl Hugh having been advised that the above clauses did not effectu- 
ally bar an alteration of the succession, on the 4th of January 1811, grant- 
ed a procuratory for resigning a part of these estates into the hands of the 
crown, in favour of himself^ his heirs and assignees, omitting altogether 
the conditions of the entaiL He thereupon (4th Feb. 1811) expede a 
crown charter, disponing to himself, and his heirs and assignees, ^ totas 
' et integras sequentes partes et portiones comitatus de Eglinton, in retor- 
*• natu spedalis servitii dicti comitis content, tanquam propinquioris et le- 
' gitimi haredia talim demortui Archibald! Comitis de Eglinton, ejus con- 
' sanguinei,' &c. 

Having thus altered the order of succession. Lord Eglinton executed 
gratuitous dispositions to his brothers General Montgomerie and Mr 
Montgomerie of Stair, of the superiorities of certain of the lands contain- 
ed in this charter ; and assigned the unexecuted precept of that charter. 
The disponees were infeft, and their saslnes registered, on the 85th April 
1811. 

Not long afterwards (as it is understood) Lord Eglinton sold, for an 
adequate price, to strangers, the donAmum utile of a considerable part of 
the entailed estate. It does not appear very distinctly from the ses- 
sion papers, whether the lands thus sold were included in the above charter 
or not, neither is the precise period of their sale mentioned. 

At the Michaelmas head court of Renfrewshire in 1812, General Mont- 
gomerie and Mr Montgomerie claimed enrolment, and produced as their 
titles the charter, dispositions, and sasines above mentioned. To these 
claims, it was objected, that the qualifications were nominal and fictitious, 
in respect of the entail, which appeared from the retour referred to in the 
disposition, and that the gratuitous nature of these conveyances was far- 
ther evidence of their confidential character. The freeholders refused to 
enrol ; and complaints having been brought, it was argued on the part of 
the respondents, fn support of the 

\8i Okjectim </ EtUaU. — ^The entail was sufiSdently effectual to pre- 
vent such alienations as the qualifications in question. It will not do to 
say, Lord Eglinton might alter the succession, and M^n alienate ; because 
any change of the succession is effectually barred. The clauses which 
have been quoted first prohibit a number of acts spedfically, and then it 
is declared generally, ' that all deeds done, or to be done or contracted, in 
^ prejudice of this present tailzie, are and shall be null and void, in so fiir 



202 NOMINAL AKD FICTITIOUS. 

mentioned case,, yet that it was a former Lord Egbnton who 
constituted the qualifications in the ca9e of Cathcart; that 

< as they may any ways operate^ or be extended to burden the tiaid lands, 

< or any ways pr^udice the suoceaaion of this present tailzie.* These 
words are suflBdent to nullify the charter of the Noble Lord. Then 
follows the clause resolving the right of any heir ' who shall contra- 
' yene the present provision.* The conditions prohibitofy and trnlsn/ 
constitute one clause^ and cannot be separated. In the Eastfield entail, 
(25th May 1^08, Fac) there was nothing in any of the clauses expressly 
referring to the act of altering the order of succession. Even if there 
was an omission in the prohibitory ckuse, in the present instance, an en- 
tail, with irritant and resolutive clauses, is effectual under the act 1086. 
If then, the entail is effectual, an action of declarator of contravention, on 
the ground of the alienation, inight be brought by any substitute ; and 
this being the case, there arises a jMYRnimfifio jwria et de jur^ that the qua- 
lification is confidential, and bestowed under a power of controul by the 
granter. It is inconc^vable that he should have bestowed it in a way to 
run the risk of forfeiture. It is no answer to say the entail was not re- 
cordedt because in a question inter hmrede$^ that makes no difierence ; and 
besides, gratuitous dispositions are challengeable, even if the entail is not 
recorded* 

It was farther maintained, that, in a question mter hmreiety an ex- 
pression of intention was sufficient, that a resolutive clause was a pro- 
hibitory, under the high sanction of an irritancy, and that the resolutive 
clause in this case referred plainly to the provision as to the alteration of 
succession in the conclusion of the irritant clause, and was therefbre ef- 
fectual in a question with a substitute. Reference was made to the cases 
of Don o. Don, 16th February 1713 ; Lord Strathnavor n. Duke of Dou- 
glas, 2d February 1728; and Gordon v. Gordon, 29th July 1761. It was 
farther argued, on the authority of Sir George Mackenzie and Erskine, 
that a gratuitous alienation in prejudice of a prohibition against alienation, 
is reducible under the act 1821. . 

^ O^fion, no oonnderaikm given, — ^A qualification given gratuitous- 
ly by a brother, who has a family himself, must be presumed confidential. 
Bven in the case of a fiither, the want of consideration, if joined to the 
other circumstances in this caae^ would be decisive. 

The complainers rep^ed : — 

l4l, Whether Lord £glinton holds his estate under an entaU efieciually 
preventing alienation or not, one thing is certain, that his Lordship does 
not believe himself so fettered. He has sold to perfect strangers the db- 
imnimn iUUe of a valuable part of the estate i and if he has thereby incur- 
red an unpurgeable irritancy, what reason has he to fear the consequences 



OBJECTION OF ENTAIL. 203 

the order of succession had not then been altered ; that, con- 
sequently, the heirs df entail retained their interest to enforce 
the prohibitions ; and that no sale of any part of the domu 
nium utile of the estate had then been made, or had probably 
even been contemplated ^ 

Some years afterwards, nine votes were at once created by 

of such conveyances as the qualifications under consideration ; or what 
need was there for an express or implied agreement to reconvey ? But, 
fiurther, Lord Eglintoun does not hold hia estate under an entail effectual 
to prevent alienation. This assertion is not founded on the want of re- 
cording, for that IS of no consequence tnilffr hmreiktf but the entail does not 
effectually bar an alteration of the succession ; and the succession being 
altered, no substitute had longer an interest to enforce the other prohibi- 
tions ; in other words, the estate became an unlimited fee. The prohibu 
Uify clause is identical with that in the Eastfield case, and does not forbid 
altering the succession. Nay, the Eastfield prohibitory clause was even 
stronger, because it prohibited any deed whereby the estate might be ad- 
judged or evicted, in prejudice ' of those who, by virtue thereof, shall be 
' then to succeed.* The irritant clause cannot supply the place of the re- 
solutive ; for nothing is better established, than that there must be a pro- 
hibitory, an irritant, and a resolutive clause. The contrary is a novel and 
dangerous doctrine. But, further, it is not every deed which may preju- 
dice the succession which is declared null in the irritant clause, but only 
the deeds previously mentioned in the prohibitory clause. 

2d; Want of eofuidlmiHon.— Lord Eglinton has only one son, who is 
of course disqualified from voting. He could not do better than give the 
qualifications to his brothers, and brotherly love may exist as well as pa- 
ternal afiection. 

The Court, 13th November 1813, repelled the objections to the quali- 
fications, and found expences due. 

* In the case of Montgomery o. Cathcart, it appears from the Session 
Papexs, that the claimant, when the question came into Court, founded 
on the alleged defective nature of the entail, and also on the sale of the 
dommimi uHle of certain lands by the subsequent Earl (see Replies), but 
to this it was answered by the objector, that it was not tlie views of the 
subsequent Earl which must regulate the question, but those of the maker 
of the qualifications, who was so well persiuided of the validity of the en- 
tail, that he allowed his estates to descend, in virtue of that destination, to 
his cousin, to the prejudice of his daughter, to whom he conveyed his whole 
disposable property, (Duplies, p. 9, et »eq)» 



204 NOMINAL AND FICTITIOUS. 

Lord Eglinton on lands which were included in the above 
entail. Previous to the constitution of these votes, his Lord- 
ship appears to have gone through the same process of resig- 
nation, to get quit of the fetters of the entail, as in the pre- 
ceding instance ; and although the entail was founded upon 
in the court of freeholders, and was probably one of the 
grounds on which those nine votes were there rejected, that 
objection was hardly, if at all, touched upon in the Court of 
Session, when the cases were brought there by complaint. 
The question then came to depend, as will be immediately 
seen ^, on the inference of nominality, arising from the gene- 
ral circumstances under which the votes were formed, and 
particularly from a correspondence which took place between 
Lord Eglinton and some of the parties K 

On a review of the whole question, regarding this objectioo 
of entail, the preponderance of authorities certidnly seems to be 
against the efficacy of the objection, when stated per se. Con- 
sidered as affecting the validity of the right of the claimant, or as 
establishing the defeasible nature of the rifi^ht, it has been 
seen, that it was many years ago decided, that the objection was 
in those points of view jW terHi to the freeholders, and it 
does not appear that this principle has been yet shaken. Con- 

> See p. 211. 

* On one occasion, however, when one of these cases, Macknight Craw- 
ford o. Stewart, 7th March 1818, Fac., was before the Court, the Lord 
President expressed himself thus : ^ Then a question arises as to the de- 

* feanble nature of the vote. Suppose that the heirs of entail of the estate 
< of Eglesham were to pursue an irritancy on the ground of this alienation, 
' is the dainuint prepared to say, that he would hold his vote, even to the 
' effect of evicting his estate from Lord £glinton ? If he cannot go this 
^ length, I apprehend he cannot be entitled to consider himself as holding 

* his vote free from all confidential understanding with Lord Eglinton.* 
But so &r from holding this view &tal to the vote, his Lordship concur- 
red with the other Judges in allowing the claimant to be examined by 
interrogatories ; and at a subsequent advising of the answers to those in- 
terrogatories, he formed one of the mi^jority of the Court who susUuned 
the qualification. 



CLAUSE OF RETUEN. 205 

sidered as tending to show such a degree of confidence as 
will induce the disponee to abandon the right, rather than al- 
low his author to incur a forfeiture, it does not appear that 
it has, in any case, been held as conchi^ve evidence per se 
of such understanding, or of that kind of general confidence 
which often constitutes nominality. On the contrary, we have 
seen that, in one instance, a majority of the Court, whilst they 
set afflde the qualification on its general complexion, admitted 
that a qualification on entailed property might, in some in- 
stances, be good ; and that Lord Thurlow remitted this case 
for farther ^evidence, thereby giving room for the implica- 
tion that the objection was not decisive of itself. We have 
also seen a much later instance, where, in like manner, a 
majority of the Court, although the qualification was found 
bad in its whole circumstances, delivered opinions that this 
objection ahfiie was not sufficient ^. 

It has frequently been the practice to insert in conveyances, 
on which votes have been claimed, clauses of return to the 
granter and his heirs, either upon the death of the disponee, 
or upon the failure of certain series of his heirs. In the first 
instance in which an objection appears to have been made to 
the validity of a qualification, on the ground of such a clause 
of return, the conveyance seems to have been not merely of 
the superiority, but of the property also. In that case, a daim 
was made by a person infeft, * tarn in feodo quam in vitali* 

* It is, however, not meant to give it as a point quite fixed, that, gene^ 
rally speaking, a qualification maj be constituted on entailed pivpertj, 
although certainly the weight of authority, quoted in the text, leads to that 
conclusion. It is understood tliat a different opinion, or at least doubts on 
the subject, are entertained by some eminent lawyers. It is proper 
here to mention, that the cases of Maxwell v. Macdowal and Chichester «. 
Maxwell, which are regarded by Mr Bell (Election Law, p. 811) as de- 
cisions affecting this question of entail, did not turn on that point at all^ 
but on the efl^t of the clause of return, and of the answers to special in- 
ierrogatories. See what is afterwards said as to those cases, p. 207-8. 



206 NOMINAL AN£> FICTITIOUS. 

* reditu, (ha^edes suo^ et ai^aaguatoei exeludendo) quo morte 
^ deficienle Copaki de Galloway (the granter) vel Alexatidro 
^ Dooaino Gairlies, ejusque haevedibus et Bucoesaoribus redire 
^ et asaignatis quibuaquiique/ with power to the disptxiee^ 
who was the son of Lord Galloway, to burden the lands to 
the extent of L. 400 Sterling ; and another claim was made, 
on a disposition precisely of the same nature, except that no 
pow6r to burden was given. It was objected, that the^e 
quriifieatigns w^re not liferents^ although the heirs of the dift-. 
ponees wei« excluded, and that the fees were nominal and 
fictitious; but the objection was vepelled* in regard to both 
claims ^. In a case which afterwards occurred, the method of 
the clause of return was adopted, because the qualificatioki 
Was already liferented by a person at that time abtoad. The 
fee was conveyed to the grantee, whom failing to th^ eldest 
son of the granter and his heirs whatsoever, under an exoep- 
ti<Hi of the previous liferent ; and an objection of nominal and 
fictitious to this vote was repelled '. 

At a Ifiter. period, great propiietors, insCeadt of creating 
votes by sdeans «f - liferoita of superiority, adopted this me- 
thod of the clliuse 6( return, in framing qualificaticms on fees 
of superiority. The plan CbUowed; was to convey fees of s^ 
periority to individuals, or to them and their hein-male, and 
to insert a clause of return to the granter and his beirs^ on 
failure of the grantee or of the substitutes. Various attempts 
were made to have such rights declared nominal and ficti- 
tious. In the first case of this description which occurred, 
and which has been already noticed ^ the reality of the right 
was afiected not only by a clause of return, but by the intro- 
duction of a clause of pre-emption in favour of the granter of 

^ Frt^ddfTB of Wigton o. Stewsft and Hay, S4th June 1747 $ Fak. 
and Sm^od Ptfpen. 
> Soott and Tod «. MiUar, SOth Fehniory 1787 ; Fac and Session Pa^en. 
' Souter «» FreehoUtM of Banff, 2eth November 1803 ; Fac gup, p. ia7- 



CLAUSP.op aEftriK. f07 

the qittKication, and by the cireuinstaanee thilt be waft fetter- 
ed bjr a strict entail. The qaaMcation wasy imder the whole 
dimmstaticeSf held to be nominat^ and'fictitious. In d^e liext 
case which occurred, the £arl of €kd]6way had conveyed a 
soperiority to a purciiiiser, arid- thef heia*s-iiMde of his body; 
whom fidling, to bimftelf and- his h&k^ of tailaie and provi- 
flion in the lordship of Galloway i and although the clainm 
ant had stated, in answer to interrdgatories, that he ix>nu 
adered faimaelf at liberty to vote for' whom he plesBcd, and 
that be was under ^no obligation to* renounce under - any 
event, the qualification was declared nominal and fictitmis \ 
In a subsequent instance, an; attempt wks nude to remedy 
the effect of a clause- of return, and other cincumstanoes in- 
fcfltng norainality, in the foUowing-nianner. The granter of 
the qualificBticMl executed a regular deed, whereby he re- 
nounced the benefit of :the iubistitntion ; cmd this deed having 
been recorded in the Sheiiff-oourt books, was produced, a 
few days afterwards, at an dection meeting at which tfa^ 
cUiBant asked enrolment. The freefaoUers, however, rivet- 
ed the ehdm; and the case havmg been brought into the Court 
of SesBBon by complaint^ before which time it was also re^ 
g^atsred in the record of sasines, the judgment of the free- 
hoklers was affirmed^ 

< likxirell ft. 'Macdowal, ^th December 1803; Ftc. aod Seiiiion Papers. 
If this eosyejanee vas in -prejudice of any ^entail, ibat ol|fecfcion k sot at 
all aigned in the papers. 

* Soutar o. Ferguson, 3d March 1807 ; Fac. and Session Papers. 
.— JVote from Sestian Paper* of Lord Pretident Campbell ' Objectiun 

* ougiit to be sustained. Clear distinction between title qualified exfact^, 

* and one wbicfa Is «^fade legal, but against which extrinsic objections 

* maj lie. BcnuBCiation here not registered, except in probative writs, 
' which ia not registration at all, as principal always given back, and may 
*■ be returned to granter. Ought to have been r^stered in Register of 

* Sannea and Reversions and a year before- See Lord Bankton, vol ii. 
^ p. 499. as to register of probative writings. Clause of registration here, 

* but is only registered as a probative writ. It can neither answer the 
^ purpose of preservation or publication.— «/t<<^tce Clerk. Clearly nominaL 
' Crm^ flamfi Rfmimil and Bahnuio. Bad vote^-^^Armadale, Good vote.* 



208 NOMIKAT. AND -FICTITIOUS. 

In this state of the law, regarding the eflect of a clause of 
return, the Court distinguished betwe^ the grant of such a 
right to a son and heir, and a similar conveyance to a stran- 
ger disponee, as the former can defeat the destination at plea- 
sure \ and is therefore not fettered by the clause of return, 
whilst the latter cannot alter the destination, unless for an 
onerous cause '. They, therefore, sustained a qualification, 
rested on a conveyance of superiority, made by a father to 
his son and heir, and the heirs-male of the body of that son, 
whom failing, to return to the gnmter and his heirs and as- 
Mgnees whatsoever'. 

In a later case, however, the Court seem to have doi^ 
away with this distinction, and also to have destroyed the ef* 
feet of the previous decisbns, which bestowed the diaracter 
of nominality upon a right of superiority, with a dause of re- 
turn. The Earl of Galloway had granted a diqxMition to hb 
8on4n-law, and the heirs-male of his body, whom fisiling, to 
himself and his heirs of tailzie, and successors appmnted, or 
to be appointed, to succeed him in the estate of Galloway ; 
and the disponee had stated, in answer to certain interroga- 
tories, that he conceived he was entitled to vote for such 
candidate as he thought proper, and not bound to reoonvey 
his qualification at the desire of the Earl. In these drcum- 
stances the Court, by a first interlocutor previous to the se- 
paration of the Divisions, found the qualification to be nomi- 
nal and fictitious ; but the case having been again brought 
before the First Division, after the separadon of the Courts, 
it was held that there was no evidence of any secret under* 
standing affecting the validity of the vote ; and the fonner 
judgment was altered, and the qualification sustained 1 

^ MarqiUB of Clydesdale v. Earl of Dundonald, 26th January 1726 ; 
FoL Diet, i p. 308. 

< Duke of Douglas «. Lockhart, 18th February 1717 ; Fol. Diet u 
P.30& 

' Gordon «. Gordon, 27th June 1807 ; Fac. 

* Chichester v. Maxwell, 28th January 1809 ; Fac. 



CONFIDENTIAL UNDERSTANDING- 209 

It may now theiefora be hdd, that a clause of return, in 
the oonveyanoe of the fee of a superiority, will noiper $e be 
fatal to a qualification, although, perhaps, it may still have 
its weight in conjunction with other circumstances in form- 
ing an estimate of the substantial nature of the right on the 
whole. 

Questions which arise, involving the objectioD of nominal 
and fictitious, are now almost entirely limited to an inquiry, 
whether, in the whole circumstances, and more espedally 
when these circumstances are taken in conjunction with the 
answers made by the claimant himself to interrogatories, 
there is evidence of a confidential understanding between the 
granter and the grantee, relative to the manner of voting, and 
to the abandonment of the right. By the numerous dedaons 
which have been pronounced on the question of nominality, 
the effect of particular objections taken nngly, such as the 
right producing little return, or being a liferent, and. many 
others, has been in a great measure determined. But the in- 
quiry as to confidence, on a view of the whole dircumstances 
and evidence of different kinds adduced, may arise in a va- 
riety of shapes, some one or other of which the question of 
nominality now generally assumes. In a recent case^. Lord 
Chancellor Eldon observed, ^ I have found no case in which 

* it has been decided, that, if the sensation in the mind of the 

* granter does not pass to the mind of the grantee, and the 
' sensation in the mind of the grantee does not pass back 

* again to the mind of the granter'; if there is not an under- 
V standing created between them, that the man shall vote as 
' the granter of the estate shall direct him to vote, that it will 
^ not be a good vote. It has been held, and Lord Thuilow 

* himself has stated, that he cannot meddle with estates when 

* the persons voting in respect of them, vote fiorn gratitude 

* or common obligation, but that there roust be a sort of pa- 
' ramount and perfect obligation disqipointtng the law, as he 

' Crawford) infnu 



SIO NOMINAL AND FICTITIOUS. 

* expresses it ; mm undentanding, that the man who made the 

< vole, made it for the purpose of making the grantee hie crea^ 

* tute, and that the man who took the vote anderstood that 
^ he so tooki and was under, if we may so call it (I cannot 

* danly d^ne it), an honorary oUigabon, that he would, in 
^ truth, become the creature of the man who meant te give 
' him the estate, far the esfHress purpose of has voting as he 

* tiM; gvanler pleased V 

' Thit confidmtial understanding, when not the subject of 
expTtss paction, wat thus described by Lord Thurlow, in the 
of Sir John Macpherson. * What a man thanks, in hb 
own mind, may be a mere sensation, and amount to nothing. 
But, if that impression upon his mind arises out of the rest 
of the trsouactioo, it extends itsdf to the granter, and may 
shew: what was the consideration of the grant If it has 
passed fipom the mind of the granter to the grantee, and 
£k» die mind of the grantee to the granter, that the grutee 
is td'etaiploy the estate for the benefit of the granter (I do 
not ask wl»ther it is in writing or in words) ; but if, in fact, 
there exists suck an understanding, it comes within the very 
lenhs of the act of ParlianienC It is mutually understood 
betweeh tfaem^ that the' right of voting is to be exerdsed by 
the voter, according to die pleasure of the granter ; and, as a 
cdnssqtiehce of this, that, if the former should not aooommo- 
date himself to the view of the latter, he is bound to give up 
his right. Thus, m the instance of the numerous votes made 
at one time by the Duke df Ckirdon, many of the voters, af- 
ter it had been found in the House of Lords that diey must 
submit to interrogatories, admitted, in answer to certain ques- 
tions, * that the'fiieehbld qualifications had been framed with 
^ a View of increasing the pditical influence of the Duke bf 
*€k>idon; that, although the persons to whom they w«re 

< granted had come under no express engagemmt to vole for 

< the ramiidsay patromsed by his Grace, they did not think 

^ BlJgh*8 Appeal Cases i. p. 1S& 



CONFIDENTIAL UNDERSTANDING. 211 

' themselves at liberty, as men of honour, to vote in opposi- 
' tion to his wishes ; and that they could not, with propriety, 
* refuse to renounce their freehold qualifications, when it was 
' necessary for the Duke's accommodation." On considering 
these admisaons, the Court decided that the votes were no- 
minal and fictitious ^ 

It seems to be a consequence of a recent decision in the 
House of Lords, that the evidence of confidence, arising from 
the general circumstances of the transaction by which the 
right has been constituted, and even from letters indicative of 
the understanding of the parties, must be very decisive, before 
it can be held to supersede an examination of the claimant by 
interrogatories, and to entide the Court de piano to pronounce 
the vote confidential. In that instance, it was held by the 
Lord Chancellor, that an opportunity ought to be given to 
the claimant to explain, if he can,* any suspicious circum- 
staaces which may appear from the other evidence in th€ case. 
The Court will not be bound to give effect to the explana- 
tion, unless it is satisfactory ; or even to believe the statement 
of the party, if they see reason to doubt his veracity, from 
the weight of the evidence afforded by the other circum- 
stances ; but it must be a very strong case to entitle them to 
refuse an opportunity to the claimant to explain the suspi- 
cious appearances, if he can. 

The recent case alluded to, originated in a number of life^ 
rent qualifieati<His which the Earl of Eglinton conveyed, at 
one time, in favour of diSereat individuals, the price piud for 
them being calculated on the value of the annuity afforded to 
each person by'the reddendum paid by the vassal, with the 
additioQ of a small sum which the correspondence bore was 
intended to meet the prejudices of the world. Besides those 
suspaoioiis of confidence which mi^t be supposed to arise 
from the general circumstances of the case, such as the num- 
ber of votes made at the same time, the nature of the right, 

^ Forbes o. Tait, ISth June 17SN> ; Fac. 

02 



212 NOMl'KAL AND FICTITIOUS. 

&c. ; which, however^ would not, of themselves, be suflSdent 
to stamp the votes as nominal ; evidence of great weight was 
derived from a variety of letters which had passed between 
the different parties at the time. In regard to one of the 
claimants, Mr Hugh Crawford, letters were produced from 
the Earl to him, with the answers returned to these letters. 
In one part of the correspondence, his Lordship observed, 

* Few persons will be more agreeable to me, being gratefal 

* for the friendly support I have received from you.** The 
letters written by the claimant certainly did not directly ex- 
press any intention of supporting the political views of the 
Earl ; but they bore marks of a strong disposition to oblige 
his Lordship, and meet his wishes, in regard to the manner ci 
constituting the votes. The claimant, both at the meeting 
of freeholders and in the Court of Sesaon, offered to answer 
any interrogatories whi6h mi^t be put to him. The Court 
were of opinion, that the correspondence established the con- 
fidential nature of tiiis vote, and without allowing the proposed 
interrogatories to be put, found that the claimant bad no 
right to stand on the roll ^ The correspondence was (bund 
to be fatal also to the other votes which had been formed at 
the same time. One of the claimants, however, Mr Macnight 
Crawford, on bringing his case again under the view of the 
Court, succeeded in making out a distinction between his si- 
tuation and that of the others, and in obtaining an alteration 
of the judgment of the Court with respect to himself. He 
was possessed of a landed estate in Renfrewshire, wbidi af- 
forded a part of a qualification ; and, before he purchased one 
of the liferents, an attempt was made to complete it horn 
Lord Eglinton^s superiority. The Court, {Mindpally upon 
this ground, altered their former judgment, so far as to allow 
an examination of the claimant by interrogatories. No direct 
correspondence had taken place between the Earl and this 
claimant, except one letter from the latter to the forma*, 

^ Cnwford v. Stewart, 12th November 1817 ; Fsc. 



CONFIDENTIAL UNDERSTANDING. 213 

which established nothing ; and the principal point which was 
investigated in the interrogatories was, whether Mr Macnight 
Crawford had been privy to the understanding which the 
Court held to be proved, as existing between the Earl and 
Mr Hugh Crawford^ and accepted his vote with similar views. 
The Court, on considering the answers made by Mr Mac- 
night Crawford to the questions put, held that he had satis- 
factorily explained the footing upon which he had obtained 
his qualification, and ordered him to be added to the roll of 
freeholders ^ 

These cases were carried by appeal to the House of Lords, 
when that of Mr Macnight Crawford was affirmed, whilst the 
others were remitted back to the Court of Session ; with in- 
structions to allow the examination of the cliumants upon in- 
terrogatories. In delivering his sentiments, Lord Chancellor 
Eldon adverted to the opinion which had been expressed by 
Lord Thurlow, in the case of Sir John Macpherson, that ^ it 

* must be upon the general state of the transaction, that the 

* Court may collect that the estate, instead of being intended 
^ to be used, or disposed by the grantee, was intended be- 
^ tween them to be at the use and disposition of the granter. 

* And whenever a case aifords circumstances sufficient, fairly 
' and roundly, to raise that presumption in an unanswerable 

* degree, or to raise it in a degree which the party himself 
^ cannot answer ; in such a case as that, the vote must be held 

* to be void."* 

Applying those principles to the present case. Lord Eldon 
stated, that he was not of opinion that such a presumption of 
confidence had been r^sed in this case, as was unanswerable, 
or which the parties could not answer ^. He farther conceived, 
that it was the meaning of Lord Thurlow, that the parties, 
even after examination, might be disbelieved, if their explana- 
tion was not such as to remove suspicions from the mind ^. 

Judgment was therefore pronounced, ordering the cases, 

» Macknight Crawford ». Stewart, 7th March 1818 ; Fac. 
• Bligh, p. 208. » lb. p. 197. 



214 NOMINAL AND FICTITIOUS. 

with the exception of that of Mr Macnight Crawford, to be 
< remitted back to the Court of Session, to hear parties fur- 
^ ther thereupon, with liberty to receive such new all^ations 

* as the occaaon may require ; and with hberty for the re- 

* spondents, in the Court of Session, to call upon the appeU 

* lant to confess or deny such averments, as to the alleged 
^ nominality, as the respondents, by interrogatoties, according 

* to the course of the Court, shall call upon him to confess or 

* deny \' 

This kind of confidential understanding, demonstrated by 
proper evidence, must, however, be carefully distinguished 
from that species of connection between the parties, which ' 
consists in rektionship, or may be the legitimate result of or- 
dinary gratitude. There must, in the words of Lord Chan- 
cellor Eldon, be a ^ paramount obligation,^ or ^ honorary ob- 

* ligation,^ which renders the voter the mere * creature* of the 
granter. Those feelings of natural affection and of dependence 
experienced by a son towards a father, are not held to be fa- 
tal to a qualification derived by the former from the latter. 
Neither will a vote necessarily he reckoned confidential in a 
legal sense, although it may have been obtainec} from an in- 
timate friend^ towards whom the receiver, perhaps, entertains 
strong sentin^nts of gratitude for favours previously recdved. 
The voters, in diese instances, may very likely feel inclined 
to forward the general political views of the granters, but still 
that sentiment which naturally arises from the relative situa- 
tion of the parties, is not held to be fatal to the qualification *. * 

> Fac CoL for 1819, p. 772. 

* The law on this head is admirably laid down by Lord Eldon, in the 
caaea which have just been referred to. See the paasage which has bean 
already quoted, p. 209 : and in a subsequent passage, his Lorddiip ob- 
serves, *■ We are here upon an infinitely delicate subject. I agree the ob- 
*• jection is founded, if the estate can be shewn from circumstanoea, from 
' the refusal of the party to be examined upon interrogatories, or fkom his 
^ deficient answer to those interrogatories, to be an estate not given to him 
*■ for his own use and benefit, to be used by him as he shall think proper. 
' But I follow Lord Thurlow in opinion, that, if the grantee shall, from 



AGENT. DISCHARGE OF OBLIGATION. 315 

lo a case where a freehold qualification had been given to a 
friend in exchange for another, and where the doncnrs were 
respectively candidates at the next general election for the 
counties to which the qualifications ^ven away belonged, the 
feeling of mutual good will which might be supposed to exist 
between the two individuals was held not to affect the quali- 
fications ^ 

It seems also to be settled, that the circumstance of the 
grantee being the agent or man of business of the granter, is 
not sufficient fer 9e to infer such a confidential understand^ 
ang between the parties, as to vitiate the qualification ^. 

Where a qualification has once been constituted upon such 
a mutual understanding between the parties, as to render it 
confidential in a 1^^ sense, that character cannot afterwards 
be removed by the granting of a deed, on the part of the do- 
nor, discharging any obligation on the part of the receiver. 
Such a document may be regarded as a mere form, whidi 
cannot alter the original nature of the transaction. Thus, 
where a vote had been found to be confidential in the Court 
of Ses»on, its nature was held not to be changed by the pro- 
duction of a ^ declarator and discharge by Thomas Graham, 

* Esq. of Kinross, (the granter of the vote), of any oUigation 

^ the obligation of gratitude, act in the same interest as his friend the 
*■ granter, that is no objection. Where a father gives to his son a qualifl- 

* cation ; where an uncle gives to his nephew a qualification ; where a 

* brother gives to a brother a qualification ; it is very difficult to suppose 
^ that the qualification is given by the fiither, uncle, or brother, without 
^ conceiving, that, in the one instance, filial affection, and, in the other in- 

* stances, the affections resulting from those relationships, will induce the 

* party to vote in the same interest with his relative and patron. But 

* authorities dted in argument prove, that there must be something fur- 
^ ther ; that you must make out that there is this underrtanding between 
' the purttes.*_See also the case of Belsheso. Smith, 89th June IBM; 
Fac. 

* Montgomery o. Dalrymple, 2d March 1813. 

* See the Session Papers in the case of Macqueen v. Nairn, 2Sd Janu- 
ary 1823, from which it appears, that this circumstance was founded upon 



ai6 OF ALTERATION OF CIRCUMSTANCES. 



* upon the said John Campbell (the receiver), to 
' express or implied ^.'* 



SECTION 7. 

Of AUeraiion ^ Circumskmces. 

The act 16th Geo. II. c. 11 ' provides^ that, if no com* 
plaint shall be exhibited against the enrolment of a frediolder, 
within four months from the date of enrolment, he < shall 

* stand and continue upon the roll, until an alteration of his 

* drcumstances be allowed by the freeholders at a subsequent 
' Michaelmas meeting, or meeting for election, as a sufficient 

* cause for striking or leaving him out of the roU.^ 

By another section of this act', an alteration of the ctr- 
cumstanoes of a freeholder is defined to be an ^ alteration of 

* that right or title in respect of which he was enrcdled.^ It 
will be proper to inquire what is held to be such a change of 
title. 

It is held not to be an alteration of circumstances in the 
sense of the act, if a freeholder merely parts with the domi' 
nium utile of the estate on which he is enrolled, by creatiiig 
a base right under him ; for he is still superior under the 
Crown \ Mr Wight, however, observes, that it seems pro*, 
per that he ought to explain the matter to the freeholders, 
and get his title put on its proper footing, that he may be in 
condition to take the trust-oath with safety. 

It is no alteration of circumstances in the sense of the act, 
if a freeholder, in making a change in his family settlanents> 

in part. The ol^|eetion of nominality wu either repelled, or at least 
abandoned* See also Speech of Lord Chancellor £ldoii in Lord Egkin* 
ton*8 cases ; Bligh, p. 203, as relating to Mr Martin, one of the claimants. 

' Stein V. Campbell, 18th November 1815 ; Fac. See also the case of 
Soutar o. Ferguson, Sd March 1807 ; Fac, already mentioned. 

• Sect 4, » Sect. S. « Wight, p. 279. 



RESIGNATION. 217 

remgnn kb lands in the hands of the Crown, and obtains a 
new charter in iavour of himself, and a series of heirs, on 
which he is infeft K It is also held, that, where a person 
makes up a new title in his own person by resignation and 
new infeftment, that drciunstance does not bar him from 
claiming enrolment on his orij^nal titles. A person who held 
certain lands of the Crown, by virtue of a charter and infeft- 
ment, obtained a new charter of resignation in favour of a 
friend in liferent, and of himself in fee ; and the liferenter 
having been enrolled on this title, afterwards renounced his 
liferent The fiar was found entitled to be enrolled on these 
lands, on production of the old titles by which he held them, 
without producing the charter of resignation, of which an ex- 
tract only was exhibited '. 

In one instance, the author of a liferenter, already on the 
ndl, resigned into the bands of the Crown, and obtidned a 
new crown-charter, and then granted a new disjposition to the 
same person in liferent, and to another in fee ; on which in- 
feftment followed. The fiar lodged a claim of enrolment ; 
and the liferenter concurred, and concluded either to be con- 
tinued in his former place on the roll, or else enrolled of new, 
in virtue of his last infeftment. Before a year, however, had 
elapsed from the infeftment, a general election took place, 
and, at the meeting, an objection, on the ground of the new 
titles, was made to the continuance of the liferenter on the 
rdl. This otgection was sustained by the freeholders, but 
was afterwards repelled by the Court'. 

The next case which requires consideration is, where a per- 
son standing on the roll conveys away, in favour of another, 
the subject on which his vote is rested, by a disposition con- 
Craung, in usual form, procuratory of resignation and precept 
of sa^ne. So long as the disponee holds merely by a base 

' Wight, p. 280. 

< Erakine v. Graham, 8th December 1790 ; Fac., and Session Papers. 
^ Campbell v, Fleming, 23d January 1781 ; Session Papers, and Fac. 



S18 OF ALTERATION OF CIBCUMSTANCES. 

right under die peraon fram whom he dcfiveB i^^ 
diveBted of die snperioritj of die subject, and would, in every 
hucanoe^ be sfiH anided to continue oo the roll of freeholders, 
were not hu tide HaUe to the objection, that it is defeaaiUe 
by another, since the disponee may, at any time, get his base 
right confirmed, or execute the procuratory of res^naidon, 
and so liivest his authcn:. To determine when this objecdon 
proves (fatal to the qualification, it will be necessary to exa^ 
mine the different orcumstaaces under which a oonveyanoe 
may be made. 

Where the disposition is granted with a view to an actusl 
transference of die suligect to the disponee for his bdioof) 
then the disponee^s rig^t, from die dme of delirery of the 
deed, must be held to be dependent on the will of the odier, 
who may, at any time, complete his entry with the Crown ; 
and will no Icmger constitute a legal qualification, unless the 
disponee is, in some way or other, bound not to make bis 
right a public one, during the life of his author, but is meve- 
ly endded to take infeftment on the precept of sasine, and 
hold base of the disponer. An obligation, however, of this 
latter kind, will remove the objection, and entitle' the dis- 
poner to continue on the roll. Thus, where a disponfir had 
so limited the procuratmy of resignation, as not to ' take ef- 

* feet till his death,^ and where the disponee had granCed an 
oUigation, which was put on record, to hold the lands of the 
oomplainer during his life, and neither to execute the proou- 
ratory, nor oonfinn a b«e infeftment, nor «]ji>dge in kopks 
ment, the qualification was found not to be impaired \ In 
like manner, a disposition, granted by a father to a son, was 
found not to interfere with the qualification of the fermer, as 
the latter granted to his father, six months before the meet- 
ing at which the objection was made, an obligation * not to 

* execute the procuratory, nor take any step for divesting him 

* Dunbar v, Urquhart, 23d February 1774 ; Fac. 



DISPOSITION. 219 

< of the superiority of his lands during hk life C ivhich obli- 
gation was iflimediately put on record ^ 

If the diq)onee has merely completed his base r^ht^ and 
then executes a procuratory for reagning the subject of this 
base right ad remanentiam in the hands of his author, tfae-lat* 
ter will then of course be entitled to remain on the roll. Nor 
is it necessary that the resigation ad remanentiam shall have 
been executed a year before any meeting for election at which 
an objection may be made. This was decided in a case where 
it was executed only the day before the meeting, and the in- 
strument of resignation recorded '. 

In a late case, a person enrolled on certain lands sold them 
by a deed, containing procuratory and precept, and also bear- 
ing a reservation^ expressed in the dispositive clause in these 
terms : ^ Reserving always to myself the superiority or domi- 

* nium dn-ectum of the whole foresaid lands and others hereby 
« disponed, during all the days of my lifef and expressed in the 
precept of saane in these terms : ^ Reserving always as afore- 

* said my own liferent of the superiority or dommium direc- 

* ium of the whole foresaid lands.** On this disposition the 
disponees were base infeft. It was objected to Ihe right of 
the disponer to remain on the roll, that it was only a liferent 
of the superiority which was reserved ; that, admitting this 
liferent to be separated from the property, the fee of the supe- 
riority was not so separated ; that the trustees were under no 
obligation not to get a charter confirming their base right ; 
and that, if they did so, the liferenter had no vassal. It was 
answered, that, by the dispositive clause, which is the govern- 
ing clause, the fee of the superiority was reserved ; that a 
proper vassalage was constituted by the base infeftment of the 
disponees ; and that the reservation was a condition of the 
onerous contract between the parties, and disabled the dis- 

* Rugael o. Ferguson, 7th March 1781 ; Fac It was stated from the 

Benchinthecaseof Stewart V. Earl of Fife 1897, that such an obligation 
might be granted, even in the face of the freeholders. 

* Macdowal v, Crawford, 2ath February 1787 ; Fac 



220 OF ALTERATION OF CIRCUMSTANCES. 

ponees fiom doing any act to defeat the title of the disponer. 
The Court, by the narrowest majority, found that the dis- 
poner had no right to continue (m the roll, principally, as it 
would appear, on the ground that his right was thought de- 
feasible ^ 

The act 1681 provides, that * no person infeft for relief or 
' pmfmeni qf mms shall have vote but the granters of the 
' said rights, their heirs and successors C and the act 12th 
Anne, c. 6, declares that no ^ redeemable right*^ shall entitle to 
a vote, except proper wadsets and adjudications. Hence 
where a disposition is ex Jbde a mere security for debt, it 
will not have any effect on the quaUfication of the granter, 
even although it contains both procuratory and precept, be- 
cause any title made up under it will bear in gremio its re- 
deemable nature ; and this is the case with the heritable bond 
and the disposition in security. Dispositions, however really 
intended as mere securities, have sometimes been made es 
Jade absolute and irredeemable ; and with respect to such, 
it will be necessary, in order to preserve the qualification of 
the disp(Hier, either thal^ the true nature of the right shall 
iqppear froni competent evidence, or that some valid obhga^ 
tion shall have been granted not to make the right a public 
one. Tbus> in one case, a person who had been enrolled on 
certain lands in right of his wife, granted, in conjunction with 
her, to a bank a disposition of those lands, containing procu- 
ratory and precept. On the day before the Midiadmas 
meeting, however, the bank executed a back bond, declaring 
that the disposition was merely in security of such debts as 
mi|^t arise to it, and containing an obligation to rediqxme 
the lands, on payment of these debts previous to a sale, but 
bearing no obligation not to make the right public. This 
declaration of the real nature of the right, and the circum- 
stance that the disponer had continued to exercise all the 
rights of a proprietor, were held to remove any objection to 

< Wilkie V. Smith, 20tb November 1891 { Fao 



TRUST-DEED. 221 

his qualificatioD, and to bring it within the provision of the 
act 1681 ; and he was found entitled to remain on the roll K 
The next set of cases which requires attention, consists of 
those which have arisen from lands having been conveyed to 
trustees for certain purposes ; and the question then occurs, 
Whether the truster is held to be so far denuded as to be de- 
prived of his elective franchise ? In some of these instances 
the trustees have granted obligations not to enter with the 
crown, but merely to hold base of the granter; and in 
others no such obligation has been granted. With respect 
to the former, it must follow at once, from the principles 
which have been already laid down, that the freehold quali- 
fication remains unimpaired by the trust ; because, if the ef- 
fect of an alienation with a view to a present sale, is obviated 
by an obligation not to enter with the crown, much more 
must the effSect of a mere trust be removed by such an obliga- 
tion. This was accordingly decided in a case in which, al- 
though the trust was constituted prior to enrolment, and the 
objection was made against a claim to be enrolled, still the 
principle established was equally applicable to a case of alte- 
ration of circumstances. In the question alluded to, a per- 
son having left at his death a conveyance of lands to trustees 
for certain uses, the trustees were base infeft, and the brother 
of the deceased served himself heir of conquest. The trus- 
tees then, for a price paid, granted an obligation not to enter 
with the crown ; and the brother having claimed enrolment 
on the titles of the deceased, as apparent heir of conquest, 
the Court held that he was entitled to be enrolled '. In a 
subsequent case, in which the circumstances were very simi- 
lar, it was objected to the claim of enrolment of the apparent 
heir of the deceased, that the right was defeaable by the 
trustees, notwithstanding the deed of renunciation, and that 

1 Alexander and others v. Brown, 7Ui March 1832, Shaw ; 15th Fo* 
bniary 182S, Fac 
' Mumj V. Nelson, 6th March 1755 ; Fac. 



222 OF ALTERATION OF CIRCUMSTANCES. 



the heir apparent was not io possession, as required by the 
act 1681, yet the Court ordered eorofanent ^ ; and in doii^ 

' « Campbell v. Spiers, 14th December 1790 ; Fac. Affirmed on appeal, 
6tli March 1791. The fbUbwing note of the opinions of Lord President 
CsmpbeU, and the other Judges^ is from the Scaaion P^[ten of the Lord 
Fxeodent— X^ord FfWMbnt As to ol^jectlon in point of title, no want of 
possession. It is a lucrative succession under the entail and trust. Sir 
Alexander represents his fiither, lives at Gargunnock, and receives fixim 
the trustees that portion of the rent which is allowed him. The entail 
dispones the estate in his favour as institute, and he is appaient heirin 
investltUKS^ The possession of the trustees is his possession. CItU pus- 
session sufficient. But the olgection is» that his title is defiMsihle, as the 
trustees may sell to a purchaser, who may execute the provisions. The 
renunciation of little consequence, as it only binds them personally, and 
not racoxded in Register of Sashies ; and even if it were, doubt if it be a 
feudal method of securing Sir Alexander in the superiority. But, Inde- 
pendent of this renundatian, can it be said that he is divested of the tight 
of apparency by a settlement in his own fiivour, or, which is the same 
thing, trustees for him, the dominium direehim still remaining in hmtdUaH 
untaken up ? Ol^ector must be able td shew that a trust-conveyance for 
the purpose of management, and for the hdr^s ownb^oo^ quoad the lever- 
sion« is an alienation from the heir. Shr Alexander is entitled to take a 
charter upon the procuratory in the entail, or^ which is the asms thing 
as to third parties, to be served upon the fbnner investitureS| and so to 
complete the feudal right in his person, which is not inconsistent with the 
feudsl right being also in the trustees.— Query, Would not his wife be 
entHkd to her teroe, or to the jointure allowed by the entail, upon his 
making up such titles ? Fraser of Lovat in a similar 8ltustio» Suppose 
the trustees also infefl upon a charter from the crown, would this entije- 
ly denude him of the feudal right of his 'estate, and his wile of the 
terce. What if Sir James living, and had put his estate under trust in 
his own life, would this have been a good ground for turning him off the 
roll? Case of Sir LudovickOrsnt very much in point. Infeftssoat in se- 
curity, till sale actually takes'plaoe, whidi will of course denude him. But, 
in the mean time, the estate belongs to nobody but him. See also case 
of G. Crauford in Renfrewshire, who was in worse circumstances.— JisaiiM 
CMt. Clear that nothmg in the oljection. Act 1681. Spirit and Ian- 
gnsge of it Beverser hss the substantial interest ti& property evicted. 
Although a^udger in possesion, he uplifts for reverser, and applies it to 
debt Accountable. Right in security the same. Power to sell com- 
mon, but makes no difference. Possession of creditors and trustee is pos- 

2 



TRUST NO ALTERATION. 828 

8o, they proceeded upon grounds independent of the obl%». 
tion pot to enter mth the crpwo, and rested their opinion 
upon the general nature oS a tru3t>nght, which was held not 
to interfere with the elective franchise of the truster. 

This general principle, indeed, that the. granting of a trust 
right with procuratory and precept, does not impair the free- 
hold qualification of the granter, even although no obligation 
should be obtained against making the right public, is now 
fully established. A trust is inteilded merely for a tempo- 
rary purpose, such as the paying off the debts of the granter, 
to which object the rents of the lands conveyed are made avmU 
able ; and although a power of sale may be granted, yet the 
trustees are bound to reconvey the residue, after the purposes 
oMhe trust have been accomplished. The substantial interest, 
therefore, evidently remains with the granter, for whose bene- 
fit the trust right is intended ; and the right of the trustee 
may be considered as a mere biu*den on that of the truster. 
In one instance a judgment was pronounced by the Court, 
proceeding apparently upcm a difi*erent prindple ^ ; but it 
has been maintiuned that that case was decided on a specialty ^ 
and, at all events, its force, as determining any general ques- 
tion, has been entirely destroyed by subsequent decisions. 
Thus a trust for behoof of creditors having been granted 
with procuratory and precept, and with power to the trustee 
to sell the lands conveyed, the Court, holding that the pos- 
session of the trustee was that of the truster, and that the case 
fell under the provision of the act 1681, relative to infeftments 
for relief, which was quoted above, found that the qualifica* 
tion ot the truster was not impaired \ In another instance, a 

wnioD of truster. Every ahilliiig thai ia uplifted goes to payment of Sir 
Alexander*8 debt. May borrow money and pay off the dehU^ManboddOk 
SamCi — Gardentkme. Same.— ffX^^roM. Same. Exactly in situation ofhb 
fiither. — Swinion. Same. — RodivUle. Same. 

* Muir and Daliymplev. Macadam, 7th March 1781 ; Fac. 

* See Supplement to Wight, p. 130. 

' Donaldson and others v. Grant, 11th March 1786 ; Fac. 



3S4 OF ALTERATION OF CIRCUMSTANCES. 

oonv«juiee <tf ceitmn 8ul:gects, with proeaMonty and precept, 
had been executed in fiftvour of a trustee, for behoof of credi- 
tors^ and the trustee had actually entered into miMves of sale 
of the superiority on which his constituent was enrolled, and 
which was one of the subjects of the trust, but the term of 
entry of the purchaser had not come when the truster^s right 
to continue on the roll was objected to at a meeting of free- 
holders, who repelled the objection. When the case was 
brought into the Court of Session, the Judges were of opinion 
that the misnves did not amount to an actual and present 
side, and that, in the whole circumstances, the truster had 
not forfeited his qualification '. 

In the preceding case, an agreement to sell, entered into by 
trustees, was held not to be sufficient to depriTe their consti- 
tuent of his right to vote. In like manner, where there is no 
trust, but the proprietor has himself granted an obligation to 
sell, and the term of entry is not come, he does not forfet his 
qualification. In a case where a proprietor had, in Septem- 
ber, exposed his lands under articles of roup, stipulating that 
the entry should be at Martinmas, when tiie price should be 
payable, and the lands had been sold on these conditions, the 
Court found that he was entitied to have been enrolled on 
these lands in October previous to the term of entry, because, 
until the sale took effect, he was fiar of the estate '. 

Where a freeholder disposes of a part of the lands on which 
he is enrolled, but clearly retains enough to afford a freehold 
qualification, he is entitled to continue on the roll. This has 
been held both where he has obtained a new divincm of his 
valued rent, shewing that the land which he retains is <tf the 
requisite valuation ', and where it is plain, from the great ex* 
cess of the whole subject over the part alienated, that the 
valued rent or old extent of what is retained is not reduced 

1 Lockhart o. Wingate, 19th Februaiy 1819 ; Fac 
* Don V. Cathcart and Oswald, 8d March 1813 ; Fac. 
' Macleod t^. Gordon, 17th January 1786 ; Wight, p. 284. 

3 



REDUCTION OF VALUATION. 226 

below the legal standard by the operation ^ Neither do ex- 
changes of small portions of ground between conterminous 
proprietors, for the purpose of straighting marches, constitute 
an alteration of circumstances, as it is presumed that each 
proprietor receives an equivalent for what he gives away '. 

A person who has parted with a small part of his valua- 
tion, clearly retaining enou^ to give a vote, is not liable to 
be struck ofF the roll for refusing to take the trustajath, if he 
assigns this circumstance as his reascm for the refusal ^. 

When a person has been enrolled on the valuation, ascer- 
tained by a decree of division, which has afterwards been re- 
duced as erroneous, he is liable to be immediately struck off 
the roll, if it has appeared in the reduction that his lands, if 
duly rated, would not have had the requisite amount of valu- 
ation ^. If, on the contrary, it should appear that his estate 
has been undervalued, the question is considerably different, 
and has not yet rec^ved the decision of the Court ^ On the 
one hand, the lands, after the reduction, certainly have no 
separate valuation ; on the other, the proprietor is actually 
enrolled on lands which truly are capable, by a division of 
the cumulo, of affording a qualification ; the error is pro- 
bably attributable to the commisaoners ; and when his claim 
was made, he had no reason to doubt that an accurate divi- 
sion had been made. 

' See this subject treated of in relation to Valued Rent, p. 138 ; and in 
relation to Old Extent, p. 108. 
« Wight, p. 288. 
' Gordon v. Heron, 25th February 1803 ; Fac. Sttpra^ p. 172, 

♦ Hope Weir v. Bruce, 14th February 1771 ; Fac. 

* See Wight, p, 287* 



286 JURISDICTION OF COURT OF SESSION. 



SBCTIOK 8. 

Of ihe Jurigdictim of the Court of Session in regard to 

Freehold Quidificaiions. 

Previous to the date of the act 1081, there is no reason to 
suppose that the Court of Sesaoh exercised any jurisdicdon 
in regulating freehold qualifications. Where disputes occur- 
red in elections of commisaoners, they seem to have been 
made the subject of discussicm in committees of Parliament^ 
whose reports were afterwards considered by the Parliamait 
itself K The act 1681 was the first which directed a * roll 
< for election/ consisting of the names < of the fiars, liferenters 
' and husbands,* who had right to vote in the election of a 
oomtnissbner to Parliament, to be made up. Any roll pre- 
vious to the date c^ this statute, which might be used at the 
head courts, would comprehend not only the fredioldefs qua- 
lified to vote in the-dioice of a commissioner, but likewise all 
those even of lesser property who owed suit at these courts. 
Hence, pre^ous to that statute, no tribunal would have any 
oppbrtuitity of exerciang jurisdiction in preserving the purity 
of a roll specially intended for election purposes; but each 
question in an election of a commisnoner would probably re- 
ceive the determination of Parliament as it occurred. When, 
however, the act 1681 introduced the election roll, it was pro- 
vided by that statute, that, < in case objections (i. e. objec- 
' tions to the qualification of those enrolled) be made when a 
^ Parliament or convention is not called, a particular diet 
^ shall be appointed by the meeting, and indmate to the par- 
^ ties contraverting, to attend the Lords of Sesson (or their 
^ determination, who shall determine the same at the said 
^ diet summarily, according to law, upon supplication, with- 
' out farther citation.'* A jurisdiction was thus, probably for 

^ See Mr TbomM>n*8 acts, vol. viii. p. 210^ et #07. 



STATUTOEY REMEDIES. 227 

the first time, oonferred on the Court of Ses^on in election 
questions; and this jurisdiction was to be exercised only in 
the particular circumstances and manner mentioned in the 
act The usual fcmn of application under this statute ap- 
pears to have been by summary complaint ^ It appears, 
however, to have been held immediately before the date of 
the act 16th Greo. Ih that a common law process of declara- 
tor might also be brought 'in the Court of Session, for de- 
claring the title of any one to be enrolled '; and there is also 
an instance of a reduction of certain enrolments having been 
brought, on the ground that the meeting was unlawful, as ha- 
ving been held on a wrong day, and by persons not on the 
roU» 

No farther statutory enactment appears on the subject till 
the act 16th Gcol II. c. 11, was passed. By that statute^, 
a nght of summary complaint to the Court of Session in re- 
iadon to enrolments, whether at a Michaelmas or election 
meeting, was given, without any distinction as to whether a 
parliament had been called at the time or not, provided the 
complaint was brought within four months of the wrong com- 
plained of; and it was declared that if an enrolment was not 
challenged within that time, the freeholder should continue 
on the roll till an alteration of his circumstances took place. . 

Questions, however, connected with enrolments, afterwards 
occurred, to which questions it was argued, that the remedy 

' See £lchie8*8 Decisions, voce Memb. FarL previous to the year 1743, 
the date of 16th Geo II. 

* liord Ekhies, in reporting a case decided in 1741, mentions, that, ^ in 
' tManUort founM en ih$ eomman tow, one could not declare his ri^^t to 
( be enrolled without calling all freeholders on the roll, because they all 
*■ lunre interest,* thereby taking the competency of sudi processes for 
granted (Case of Sutherlandshire, 17th February 1741, Memb. of Pari. 
No. ?•)« and, on refehring to his notes, voL ii p. 259, it will be seen that 
this opinion was not confined to himselfi 

^ £lchiea, voo8 Membb Pari. No. 6. 

* Section 4. 

pa 



288 JURISDICTION OF COUET OF SESSION. 

aff>rded by this act did noC apply. Thus, in a case in whicb 
one of only two freeholders attending a Michaebnas head 
court of Kinross-shire acted as preses, and thought proper 
to direct the name of an absent freeholder to be placed after 
another name, before which it previously stood, the free- 
holder thus postponed, presented a complaint to the Court of 
Session, praying to be restored to his former place on the 
roll. Il was objected that that process was not apphcable, 
under the statute, to such a case. The injured party then 
brought an action of declarator^ to have it found that he was 
entitled to occupy his former place on the roll. It does not 
appear that any objection was stated to the competency of 
this action, which was taken up along with the complaint, 
and the party obtaine<l decree, restoring him to his former 
place ^ 

Other situations afterwards occurred, in which the remedy 
of common law processes was attempted, and in which the 
title of freeholders to insist in such actions was the subject of 
much discussion. In judging of the metita of a qualification, 
the freeholders, in general, cannot go beyond die claimant's 
charter and sasine, and the ex Jime evidence of his yahi- 
ation ; and the Court, in considering a complaint against an. 
enrolment, are subjected to a similar limitadon. Hence if 
the defect is more deeply rooted, the question occurs, whe- 
ther the frediolders have a remedy at common law? Thi^ 
question asose in regard to the right of the frediolders Xo 
challenge at common law decrees of diviaon of valuations. 
There are certain objections which cannot competently be 
urged in a summary complaint, but must be brought forwanf 
in a r^ular process of reduction, which is of course compe- 
tent tq .any person who has a pecuniary interest in the valu- 
ation arising from those various patrimonial rights whidi de- 
pend on valued rent, such as the payment of cess, and the di- 
vision of commonties. But it was considered doubtful wh<v 
^ Rankine o. Ramfsy, 23d January 1767' 



COMMON LAW PROCESS. 229 

ther this action was competent to mere freeholders ^; ' and in 
two instances in which actions of reduction of divisions of 

' The following case occurred in the year 1767. An action of reduction 
of a decree of division of Commissioners of Supply of the county of Cromar- 
ty, was brought by a frediolder on the rolL Thereafter a new action of re- 
duction was brought of the same decree, and at the instance of the same 
pursuer, calling certain persons who had been omitted in the former ac- 
tion, and who had been enrolled on the lands valued by the decree ; and 
concluding, inter o/to, to have it found and declared that these parties 
were not entitled to stand upon the roll, and that they ought to be ex- 
punged accordhigly. A third process was brought by the same party, for 
having it declared that certain huids, which had been valued by this de- 
cree, did not lie in the county of Cromarty, and that certain parties who 
had right to those lands should not be admitted to the roll in that county. 
These three processes were conjoined. Pending the litigation, the pur- 
suer of these actions was struclc off the roll of freeholders at a Michael- 
mas meeting, on the ground of an alteration of circumstances. He had, 
however, lodged a daim, praying that his qualification should be restricted 
to ciertain lands there mentioned : and upon this claim being rejected at 
the same meeting, he complained to the Court of Session. In these cir- 
cumstances, the defenders in the action of reduction, who had, even be- 
fore this change in the pursuer^s circumstances, objected to his title to 
pursue, brought forward a new objection, on the ground that be was no 
longer on the roll of freeholders. In answer, the pursuer maintained, 
that, as he had complained against the judgment of the freeholders reject- 
ing his restricted daim^ it could not be taken for granted that he had no 
right to be on the relL The Court sustained the pursuer's title in the 
coxgoined processes. The defenders having been afterwards assoilzied on 
the merits, the case was carried by appeal to the House ef Lords, when 
the respondents uzged the following objections. It was argued, 1«<, That 
the demand made of striking persons off the roll by a declaratory action 
at common law, was not founded on the law of Scotland ; the Court of Ses« 
sion having no jurisdiction with regard to the roll of freeholders except 
by express statute, which limits and defines the mode of trying such ques- 
tions, viz* by summary complaint within four, months. 2dy That the pursuer 
had no title to insist in these suits as a freeholder, his o1|ject not being to 
obtain any relief with relation to the land-tax. It was answered on the 
part of the appellant, that the Court of Session bad an inherent juris- 
diction in matters of enrolment, independent of statute. The House of 
Lords pronounced judgment to the following effect : ^ It having been 
* strongly objected that three actions brought in this cause are incompe- 
' tent for the relief thereby prayed, at the instance of the appellants against 



230 JJJEISDICTION OF COURT OF SESSION. 

valuation were brought by freeholders, their title was object- . 
ed to, on the ground that, in a question with them,. a formal 
decree of the Commissioners of Supply must be hdd as por- 
hcOio probata and unchallengeable. This objection was, how- 
ever, repelled in both cases, and the title of the freeholders 
sustained ; some of the Judges assigning as the ground of 
their opinion, the patrimonial interest which frediolders had 
to preserve the purity of the roll ^. 

' the respondents, and do not lie : and the aaid oljection having been ar- 
' gued upon points of great consequence, and Ibe Court of Beaton havfaig 

* given no opinion upon such points, it is ordered, bj the Lords Spiritual 
' and Temporal in Parliament assembled, that the cause be remitted bade 
*• to the said Court of Session in Scotland, without pr^udice to the merits, 
*• if the actions should be found to tie.' The case having returned to the 
Coun of Session, and having been remitted to Lord Ken^et, Ordiiiarf, to 
do therein as he should see cause, his Lordship pronounced the following 
interlocutor: <6A Jti/y 1768.— Having heard parties' proeuratonn upon 

* the competency of the action of reduction, and olgections to the pursuer^ 

* title to insist therein, finds the action competent for reducing the de- 
*■ creet of valuation, and sustains the pursuer's title to insist in the 9C» 

* tion.' In this judgment all parties acquiesced Sir Jbhn Gordon «. 
Lord Elibank and others, decided llth^ebruary 1767) m the Court of 
Session on the point of title, and 3d March 176B in the House of Lords ; 
Session Papers and Appeal Cases. ' 

It will be observed, that, subsequently to Uus, in the year 17^4, the 
judgments which follow in the text were pronounced, by which the com- 
petency of actions of reduction of decrees of valuation were sustained, «i 
the instance of freeholders, so that that point may be considered as fitUy 
settled ; but the remit of the House of Lords in the case just mentloQed, 
and the circumstance that Lord Kennet's interlocutor went no farther 
than to find ' the action competent for reducmg the decreet of valuation,' 
must shew that serious doubts were entertained as to the competency of 
the other dedaratoiy conclusions of the difierent processes in that eaaew 
See, however, the opinions of some of the Judges as to the competency of 
a common law remedy, in the case of Hope Weir v. Bruce, Uth February 
1771 ; HaUes. 

^ Ross and others v. Mackenzie and others, 10th March 1774 ; Fac. 
Earl of Fife and others v. Duke of Gordon and others, KTth June 1774 ; 
Fac ; Wight, p. ISA. In the former of these eases there were two ob- 
jections; l#l, That the Court of Session had no jurisdiction to review the 
proceedings of the commissioners^ and, 2d; That the freeholders had no title 



COMMON LAW PROCESS. 281 

About the same time, a similar questbn occurred relative 
to the title of firediolders to insist in a process of dedaratori 

topimue. Both objectioofl were repeUed. The following notes of the 
opauons of the Judgei are fimn the Senion Papers of Sir Bay CampML 

* HmUt^ No doubt of first poiiit. Would have had some doubt of second 

* point seven jears ago^ but too latA^Gardefukme. Same— .ITtftinefc Same. 
^ Distinction between at faeie and not, proper. Errors in procediure suffi- 

* cient, thoof^ not null in point of form. Proper that there should be 
*• a cheque— J^iffbifr. Same. A matter of greater consequence than real 

* piupeitj. Bladnction between mt fwU and not, proper* Things that 
^ require proof and wliat does not require proo£— JfonMdiiv If have a ju- 
*• riadiction to correct them, extraordinary if no person has a title to 
*• diallenge, if do wrong.— «/iM<io0-CZ0rAr. Multiplicity of questions. Wish 
^ to retum to principles. Not intended by those who formed the act 10th 

* to hang up the diort and summary question of valuation, either by com* 

* plaint «r pieoeas* Decree of division, where formal, equal to a retour. 

* Could a freeholder olyect foigery or fidse evidence to a retour.— iN(^bMr* 
*' Do not differ as to principles ; but if any thing ex faoie, proceed upon 

* that. Wm not delay the matter for a proo£ If prevails in reduction, 

* this an alteration of circumstances.— JtifliM«C2fr^. Defect in constitu- 
' tioB ought to be corrected by legislature. Acts and commission draw 

* out to great lengtli. Some challenges may be made agunst real pro- 
*• piietorm.— CobftM. Should be glad that we had no jiurisdiction, without 
« endangering property of the subject. Remit with instructions. Power 
^ of review of commission of Parliame^, unless where a final power is gi. 
*' v«n« Not a committee of Parliament, but commissioners or judges ap» 
' pointed by Psrliament. Admitted Uuit competent to parties patrimonial. 
*• If ooaoemed. This proves jurisdiction. Suppose an estate purchased 
*• at judicial sale of L. 10,000, and purchased by two different persons, and 
^ commiasioners divide, so as to give one L.7000 and the other L. 3000. 
*■ Suppose a superiority only, not merely a political interest, will sell 
^U^Mrinamarket. If jurisdiction admitted, cannot dispute title. Patri- 
*• monial interest that freeholders cannot be increased upon him. Es faciei 

* At, A distinction attempted here between powers and legality, but no 
*' fimndation. Null if contrary to proo£ Practice of Court. Objections 
' appcflsii^ sur fiuie. Cases in House of Lords. Many causes now de- 
^penfing on it. Only question is, whether even pro<^ ought not to be 

* aUowed. Ib Lord Fifb'scaases, proofr about mills. ' Do not think there 
^ can be a reduction at instance of freeholder till daim entered— jKohim. 

* Decreet of commissioners, like any other decree, good till reduced. 
' Court of Seaidon can reduce* Freeholders ought to put him on roll, but 

* may be challenged here. Question at whose instance ? Valuable pa. 



282 JURISDICTION OF COURT OF SESSION. 

that certain BosineBf on wfaidi claims of enrolment were made, 
hadnot been truly registered of the date shown by the certificate- 
It appeared that these saunes had been presented on the SOth 
September, and entered in the nunute-book of that date ; but 
the entry was not signed by thctkeeper for a few days after, and 
the sasines w^ere not fully engrossed in the register till the Sd 
of October. The certificate on the back of the sasines bore, 
that they had been presented on the 30th of September; and the 
keeper made a jotting in the minute>book, of the date of actual 
engrosang in the renter. In these circumstances, and be- 
fore any claim of enrolment was entered on these sasines, am 
action of declarator was brought by certain freeholders stand- 
ing on the roll, concluding to have it found that the saanes 
should not be hdd as r^stered on the 80th September. In 
this action a judgment was pronounced, dismissing it hoc staiu; 
and a reclaiming petition against this interlocutor was refused, 
although, in the mean time, .claims of enrolment had been ac- 
Uiiily lodged. These claims were, however, afterwards insist- 
ed in. The freeholders refused to enrol the claimants; and bs it 
was apprehended that the claimants would complain against the 
judgment of the freeholders, and would miuntain that the ob- 
jection was incompetent in a meeting of freeholders, an 
apprehennon which the event justified, an action of declarar- 
tor was brought by the same freeholders, who bad insisted 
in the former declarator, conduding as before, that the saanes 
should not be held as registered on the SOth September. In 
defence, it was maintained that the action was incompetent, 

' itrimonial interest. Onl/ difficulty is, if one fireeholder fiiik anotlier 
' will take it up ; but this occurs in other cases ; e. ^ reduction si in- 
' stance of one creditor not fwt jwHefUOy but will not allow new one without 
( good reason.— ^Ido. For practice.— JtMlJM.CM^ Levying tax by old 
' extent very uiijust. Ayrshire Ii.4000, and shire of Edinburgh only 
' L. 600. Altered in order to proportion land-tax equally. Low valua- 

* tion was then the plan, now otherwi8e^-Jti«<i00-CMk. J3oubt is upon 

* light of a freehohier.' ' Sustain competency and title in reduction, and 
^find ^*fwH$ olyections competent in complaint* 



COMMON LAW PROCESS. 288 

because the act 16th Geo. II. having prescribed the mode of 
redress by summary oomplamt, any common law process which 
might otherwise have been ccMnpetent had thereby been cut 
off; that the defenders had accordingly already brought a 
summary complaint against the freeholders for refusmg to 
enrol them ; that the principle, that every wrong must have a 
remedy, could not avail the pursuers, because, if the objection 
was competent to the freeholders, it would be discussed in the 
complaint, and if incompetent to the freeholders, it was equal- 
ly so to the Court of Session, which had no original juris- 
diction in matters of enrohnent. To the tide of the free- 
holders it was objected, that they had no right to go beyond 
the writings produced to them ; and that any inierest they 
had in the result, was merely remote and consequential. On 
the other hand, the pursuers argued, that it was a matter of 
indifference to them, whether the objection was discussed in the 
declarator, or in the complaint ; but that as no wrong could 
be without a remedy, one of these methods must be open to 
them; and that, as freeholders on the roll, they had a clear and 
obvious interest to prevent the enrolment of others not legally 
qualified, and were fully entitled to insist in the proper action 
for that end. The Court accordingly sustained their title to 
innst in the action : and afterwards, on the ground of the 
practice in keeping the record which had been proved in a 
previous case from Cromarty, repelled the objection to the 
registration of the sasines ^. 

There does not appear to be any reported case, involving 
a similar question for a long time afterwards. A few years 
ago, however, a case occurred as to the right of a freeholder 
to insist in an action of reduction of titles ex Jade unexcep. 
tionable, on which a claimant had been enrolled, where the 
ground of reduction was, that the lands were truly held bur- 

^ Earl of Fife and others o. Gordon, Skelly and others, 8th July 1774, 
Session Papers ; and Fac. CoL 



284 JURISDICTION OF COURT OF SESSION. 

gflg«'0f tMth>#D,aBd that tii^ Holding had been idiproperiy 
ilt^Ml to a blencH-tcnarer ' A dainiant hod been enrolled on a 
Grotm diarter of Afe Superiority of oertsm -portions of the 
Bdfgh Mtiir irf BdinbuTgfa, voAexJade of thi& charts, the 
Ittidrwei^'hekl bienbh tif the Ch>wn. AgEunst this enrolment 
a ebttipkbit' wan presented to die Court, by one of the free- 
tfae roH, oil the ground that the lands truly formed a 
Burgh of Edinbui^ ; and, therefore, oould not af- 
ttftA a quali^catibb in a county ; and that, in oUaining the diar- 
tiStj rii^tMui^ badbeen improperly changed from burgage to 
ble)ichi"^The edmplidnt was dismissed as incompetent, on 
Ih6 groufid that'thi; tidds ^Bxj^tde afforded a good freehold 
qttahf9eUMiotf. The same freeholder, after the ^piry of four 
nft^ths from tile enrolment, brougirt an action of reduction of 
the daimailt^ titl^ on the same grounds which had been in- 
sisted in, In the* complaint. Iii defence it was miuntained 
that the action was inconkpetent, as having been brought af- 
ter the lapse of four moilths, and that the pursuer bad neither 
titte nor Interest to' pursue: The Lord Ordinary fbund that 
the ptfrsut^r had^a suffident tideto inmst in th)s action, * in so 
^ ffar as thfe putsuto b interested as cfne of the freeholders 
< stemdili^ 6n &ih toll tyf freeholders of the county of Mid-Lo- 
' thiaii, SB libelldd, to reduce the defender's said tides.' The 
case was carried by petition to the Inner-House, where it was 
mmntdin^ by the defender on th6 point of competent, that 
the ordinary courts of law never had any original joriad&c^ 
tiotfltt election' matters, and that theistatute 16tli €1^. II. 
mek^ly gives a right of comjdaint, which must be extrased 
within fdur ninths, oth^wise the person enrolled cannot be 
strtMlk Off; ilhless on ian afttersdon of citcunistances. On the 
point of title, the defender argued that the tide of the 
pursuer having been sustained only in so far as his interest 
as a freeholder extends, this limitation involved a contradic- 
tion, because it seemed to admit that a freeholder had no title 
to reduce an infeftment, in so far as it was a title of feudal 



COMMON LAW PROCESS. 885 

property ; whilst it was l^ally impossible that an infeftment in 
blench .lands, valid in all other. lespects, should noL affimi a 
qualificatioD, a right of voting being by statute attaehedito.sucb 
an infefhnrat ; and that the qualification contemplatad by ihe 
statutes was merely a primary title or existiag inveatitute, and 
not an ultimate right. The pursuer maintained in answer, 
on the pmnt of competency,. that that point was truly invol- 
ved in the merits, for that if the title were .established, the 
competency followed of course ; ,4iat the remedy .^f complaint 
as given^by the statute 16tb Geo, IL was intended only for 
those objections which could competently, be jmade the sub- 
ject of that ki^d of procedure ;. and that, therefore, the limi- 
tation of fouitmonths did not apply to cases at common, law ; 
and ^at this action was brought for the purpose of effecting 
an alteration of circumstances, which would extinguish the 
qualification even after four months. On the question of title 
it was maintained, that every freeholder, as entrusted by law 
with the guardianship of the roll, and also as being patrimoni- 
ally interested, is entitled to challenge a claim of enrolment, 
on a kind of estate not afibrding a qualification, and if this 
cannot be effected by complmnt, he must have, a right to in- 
sist in a common law action to this effect ; that) with respect 
to the limitation in the Lord Ordinary^s interlocutor, if it 
should be necessary to reduce the defenders infeflm^nt fun- 
damept^ly, the pursuer^s title as a freeholder, must neces- 
sarily be broad enough to effect that, even under the Lord 
Orduiary ^s interlocutor* • Reference was also made to the case 
of Lord Fife v, Grordon in 1774, and to those of Boss v. 
Mackenzie, and Lord Fife r. Duke of Gordon in the same 
year, which have been already quoted. The Court adhered 
to the interlocutor of the Lord Ordinary K 

In another case, which was decided at the same time, tlie cir« 
cumstances were precisely nmilar, except with respect to the time 

1 Gibson v. Forbes, I9tb May 1820 ; Session Papers, and Fac Col. 

1 



286 JUKISDICTION OF COUET OF S£SSIOK. 

at which the aedon was brought. The summons was raised 
before the defender had been put upon the loU ; and on this 
ground the action was at first dismissed by the Lord Ordi- 
nary ; but the defender having afterwards been enrolled, the 
Lord Ordinary altered Us interiocutor, and pronounced 
judgment sustiuning the title in the same terms as in the pie- 
ce^ng case ; to which judgment the Court adhered ^. 

Both these cases were carried by appeal to the House of 
Lords, when certain difficulties were stated by the Lord Chan- 
cellor, with respect to the form of the summonses, and to 
what judgment it might or might not be in the power of the 
Court afterwards to pronounce on the merits of the cases. 
His Lordship observed, that ^ The summons t^ks for a Mai 

* redfiCtion, The utmost that Mr Gibson (the pursuer) can 

* get by this action is, that^is appelant shall be taken off the 

* roll of freeholders. Ifow he is to be taken off the roll by 

* the Court of Sesaon, does not yet appear V The House 

> Gibflon V. Arbuthnot, 19th May 1890 ; Session Papers and Fac CoL 
in note to preceding cue- 

* The following are fiurther extracts from notes of a short-hand writer, 
of what passed in the House of Lords. 

^ Lord ChoHeeBeir^^The Court of Session having given leave to i^peai 

* before the conclusion of the cause, shews that they thought themselves 

* competent to have given some final judgment in it. It has struck me 
' strongly that this is a case which we must remit ; as we are bound 

* to suppose that, notwitlistanding the form of the summons, some judg- 

* ment can ultimately be given. 

* Mr Grant— We will ahew your Lordship what judgment ndi^t be 
*■ i^ven under this summons. 

^ Lord CAomwifor— 3ut then we should have to give an opinion as to 
' what the final interlocutor of the Court of Session may be, befi>re the 
'Court itself shaU have decided.' 

^ ifMona^GsfMroA— We ask leave to appeal, on the ground, that, under 
« this sununons, no freeholder merely as such is entitled to pursue. I aay 
' that the prayer of the summons should have been, that the enrolment 
^ should be reduced. 

* Lord ChanetOor^^l suppose they will say the charter should be r^ 

* duced, so fiur as it gives a right of voting; and that thea, at the next 



1** 



COMMON LAW PKOCESS. 237 

of Lords accordingly in both cases < remitted the cause to the 
' Court of Season, to revise the interlocutors appealed from, 

' Michaelmas court, the appellant, from a change of circumstances, could 
< be put off the roll. 

' AUomtjf'GeneraL'^BvLtf for this purpose, they must reduce the tenure. 

^ The Attorney General then concluded. 

^ Mr WMeraUiar the appellant^I will take notice of a £dUcy on 
^ which the respondent argues. He holds the right of voting to be a part 
^ of the subject. The right to vote is a consequence of the tenure ; no- 

* thing entering into the corpus of the freehold, only growing out of it ; 
' and BtandB pari pastu with a right to rote for a freehold in England. 

^ This is an action to destroy in Mo the grant. 

^ Lord ChaneeUor,^^-mThe inclination of this House is to remit to the 
' Court of Session to consider the terms of the summons, and to find what 
t remedy the Court of Session is entitled to give under it, supposing the 

* judgment now appealed from stands. 

*• Mr Grant. — ^A pursuer is entitled to limit the ronclusions of his sum- 
^ mons as much as he pleases ; and the Court is entitled also to limit them 
^ for him. 

' Lord Chancellor, — ^Whether the pursuer restrict or the Court restrict 
' we must, if we proceed now, decide what tliat restriction must be, with- 
^ out the Court of Session having decided before us. 

*■ Lord Re dea d ak .^'JyoeA not the competency or incompetency of the ac» 
^ tion depend upon what the Court can do ; if the Court can do nothing 
*• the freeholder cannot sue. 

* Lord ChaneeUor,^~-yfe have not here in discussion what the Court can 
*da 

* Mr GnmiU— In the parallel caae of a reduction of a decree of valu- 
*• ation, the question has always been, if the freeholder had a legal inte- 
' rest to pursue,— this interest might be variousy— distributing the mode 

* of taxation, &c. — there never was a question in such actions, that a per- 

* son as a freeholder merely had no title to pursue. Mr Grant read the 

* terms of the summons. 

*• Lord CAofiosfiiDr.— You are to restrict, then, the generality of the pray • 

* er of the specialty of a redtaL 

* Lord Redetdale>'^l[ifxw can there be a competency to sue, if nothing 

* can be done under the action ? 

' Lord ChanioeOor^^^ ^ve no opinion as to whether any thing can be 

* done or not under this summons. But we must use great caution in 
« cases from Scotland, and particularly in a case like this, how we proceed 
' in point of form. We should have first heard from the Court itself its 



238 JURISDICTION OF COURT OF SESSION. 

*' generally, and especially havmg .n^gard to the summooB 
^ and the prayer thereof, and to what the Court, having such 
^ regard, can or cannot, according to law, farther do in this 

* cause.^ 

In the second case; in consequence of the farther objection, 
that the summons had been raised before ^uxilment, this ad- 
dition was made to the remit, ^-and having also spedal re^Sud 

* to the period at which the appellant was enrolled bn die roll 



• * of freeholders * 



When the cases came back to the Court of Session, consi- 
derable discusuon took place as to the manner of carrying this 
judgment into eifect; but at length an interlocutor was pro- 
nounced, ordering production to be made of the titlds sought 
to be reduced, reserving all objections to the pursuer^s titles ; 
and this judgment was pronounced, although the defenders 
refused their consent to this mode of procedure \ 

With respect to the objection in the second case, that the 
action had been raised before enrolment, the Court, by a ma- 
jority, adhered to the former judgment, by which that ob- 
jection was repelled *. 

*• opinion, what it could have done ultimately under the summons. I 
' should have wished the final decree to be pronounced before the appeal 
' came here** 

* The following extract fhmi the notes of the ahortiumd writer, relates 
to this part of this case. 

' The AUomep-Generai stated, that here there wan an additional point. 
^ The action had begun before the appellant was put upon the roll, and it 
^ was then 'found to be incompetent. The appellant haying, been 8ub« 
' sequently put upon the roll, the action originally brought wat allowed 
* to proceed. *«. . .1 

*• Lord ChanetOar, — So an action found to be incon^etcnt at .tlie .time it 

< was brought, was, by a subsequent event, held to have been competent 
^ from the beginning, to have been legitimated par wbieqmnt Hulriwioniiiiii. 

< We wiU make an addition to the remit in this ^^mej eaUlng.the attention 
' of t)ie Court to the period at which the appellant waaensDlied.' 

» 23d June 1824 ; Fac. - 

' Gibson Craig v, Arbuthnot, 15th January 1885 ; Shaw. 



OF COMPLAINT. 289 

These cases were in this stage of the proceedings allowed 
to drop. 

Having thus given some account of those instances in 
which the Court of Session has exercised a jurisdicUon at 
common law in election matters, it remains to direct our at- 
tention to the statutory remedy of complaint. .1 
By the act 16th Geo. II. c. 11 S it is provided, ' That if, 
at any Michaelmas meeting, or meeting, for election, any 
p«^on claiming to be enrolled shall, by judgment of. the 
freeholders, be refused to be admitted, or if. any person w1k> 
stood upon the roll shall, by like judgment, be struck> off, 
or left out of the roll, it shall and may be lawful fori him^ 
or them, who is so refused to be admitted, or whose name is 
80 struck off, or left out of the roll, to apply (ao as such ap^ 
plication be made within four kalendar months after their be- 
ing so refused, struck off, or left out) by summary comi' 
plaint to the Court of Session, who shall grant a w$n»nt 
for summoning the person or persons upon whose objection or 
objections he was refused to be admitted, or was struck off, 
or left out, as aforesaid, upon thirty days^ notice, to answer, 
and shall proceed to hear and determine in summary way 
on such complunt ; and if any person shall be enrolled whose 
title shall be thought liable to objection, it shall and may 
be lawful for any freeholder standing upon the said roll, 
(whether such freeholder was present at the meeting «r not), 
who apprehends that auch person had . not. a tiiglu to be 
enrolled, to apply in like. manner by.complaint»to,tbe Court 
of Sesaon, so as such application may be made within four 
kalendar months after such enrolmenC ... .1 
By the subsequent statute 80th Geo. JIL c«. 17%.i( is pro- 
vided that ' a complmnt presented to the Lord Ordinary on 
^ the bills in the time of vacation, withiathe said four kalendar 
< months, shall be equivalent to, and have the same effect, for 
* all the purposes pi"ovide4^ for by the said act of the sixteenth 

» Sect 4. » Sect. 4 



240 OF COMPLAINT. 

* of his late Majesty, as if such complaint bad been presented 
^ to the Court of Session while sitting : Provided always, that 

* printed copies of such complaint be lodged, in the usual 

* form, on or before the third sederunt day of the ensuing 



Under these clauses, the first point which shall be considered 
is the time within which the complaint must be presoited. The 
statutory period is four kalendar months; and the^methodof com- 
puting a kalendar month is from any day in one month to the 
corresponding day in the following month. Hence, a compliunt 
moved in Court on the 6th of February, was held to be within 
four months of a meeting, which had been held on the 6tb of 
October ^ It is held that the application to the Court qfSes^ 
siofiy under the 16th Geo. II., must be made by presentment 
of the complaint, within the four months, to the Inner*Houfle, 
whilst sitting in judgment ; so that if the complaint is merely 
boxed and the fees paid, but is not moved in Court within the 
statutory period, it must be dismissed as not being duly pre- 
sented. So indispensable is this rule held to be, that e£Pect 
must be ^ven to it, even after issue has been joined on the 
merits of the oxnplaint. In one instance, the litigation on 
the merits had gone on for some years. The respondents 
then brought forward the objection, that the complaint had 
not been moved in proper time, although it had been boxed, 
and the fees had been paid within the limited period ; and the 
Court dismissed the complaint as incompetent. The respon- 
dents, however, were subjected in the previous expenoes, be- 
cause it was held to have been incumbent on them to have 
stated the objection ii^due time \ In a previous case, a com- 
plaint against an enrolment on the 24th September, had been 
moved in Court on the 9Sd of January, and ordered to be 
served ; but by mistake the clerk had not written out die de- 

* Camitheri v, Feiguson, 1762 ; Wight, p. 133. 

* Spiere v. Buchanan and others, 26th Janusrr 1823 ; Fac. and Shaw. 



WHO MAY COMPLAIN. 241 

llverance in due time, so that the warrant for service did not 
bear date till the 26th January, which was beyond the four 
months. Under these circumstances, the Court repelled the 
objection to the competency of the complaint ^ 

As the complaint must be presented within four months, so 
it is incompetent, after the lapse of that period, to supply any 
omission which destroys the effect of the complaint. Thus 
in a case in which it had been omitted in the prayer of the 
petition, to crave an alteration of the judgment of the free- 
holders, but it had been simply asked to remit the case to 
the Lord Ordinary to hear parties, the Court refused to al- 
low this defect to be remedied, after the elapse of the four 
months ; and afterwards of consent dismissed the complaint as 
incompetent ^. 

The clause of the act 16th Geo. II, which has been quoted, 
gives the right of complaint ; 1^^, to any one who has been 
refused enrolment ; ^dly^ to any one who has been struck off 
the roll ; and, 3d/f/, to any freeholder, whether he was present 
at the meeting or not, who apprehends that another has been 
wrongfully enrolled. It has not, however, expressly provided 
for the case of the freeholders refusing to strike one of their 
number off the roll, on a well founded objection ; but the 
Court have, by an equitable extension of the enactment, ad- 
mitted the competency of a complaint in such a case ^. 

By the words of the act, the right of complaint against the 
enrolment of a claimant is given only to a freeholder on the 
roll. This rule, however, has been sometimes relaxed. Thus, 
in a case where a claimant who had been rejected, presented 
one complaint against that refusal, and a second complaint 
against the enrolment of another claimant ; the Court first de- 

> Gordon v. Duff, 7th August 1773 ; Fac 
* Spiers v. Campbell, 3d March 1826; Shaw and Fac. 
' Hope Weir v. Bruce, 14th Febuuary 1771 ; Fac and Hailes. Some 
earlier cases to a similar effect are mentioned by Wight, p. 137* 



242 O^ COMPLAINT. 

cided, that the oompliuner was entitled to be enrolled, and or- 
dered him to be added to the roll ; aiid then, in reqpect of 
thb judgment, they repelled the objection, that he was not 
on the roll, urged against his title to insist in the second com- 
plaint ^. 

A like libeml construction has been given to the'statnte in in* 
terpreting the meaning of that r^usci to enrol, which ailthorises 
a complaint Thus, when the freeholders merely delayed enrol* 
ling certain claimants, upon the ground that a reduction of the 
valuation of the lands on which the claims were niade, had been 
actually brought, and did not absolutely reject the claims, 
complaints were held competent, and the Court ordered the 
clumants to be enrolled *. In another instance, certain inter- 
rogatories were proposed to be put to a freeholder, who had 
been many years on the roll, tending to shew that his quali- 
fication was nominal, and that he never had been in posses- 
sion. This gentleman havmg expressed his willingness to 
take tlie trust-bath, but declined answering the interirogatoriesy 
another member of the meeting proposed that he dibuld be 
struck off the roll, but the freeholders did not proceed to uiy 
vote ; and the minutes merely bore, that * the oath of trust and 
' possessioti having tieen tendered to the said David BalHngali, 
* the same was taken by hiii^.'* A complmnt having beeb 
then presented to the Court of Session, praying that Mr Bal- 
lingall should be struck off the roll, the Cbiirt held that, as the 
freeholders had entirely disregarded the mbtion made regard- 
ing him, their conduct was equivalent to a refusal to expunge, 
and sustained the competency of the complaint '. It is true, 
that it has now been settled, that, after four itionths have 
elapsed from the date of enrolment, and when no alteration 



> Gordon «. Johnston, 17th February 1767 ; Wight, p. 13& 
* Rose and others v. Gordon and Urquhart, January 1766 ; affirmed 
appeal, March 1766. 

' CampbeU o. Ballingall, 3d March 1791 ; Fac. 



WHEN COMPETENT. 248 

of circumstiuiees has taken place, it is incompetent to em- 
ploy any other means than the trust-oath, to investigate dther 
nommality 6r want oT possesion ; but this state of the law 
wotdd not afiiect the principle established in the case of Bal* 
iingall, that, where freeholders have altogether waved giving 
any judgment on ah objection, wheth&r well or ill founded, 
a complmnt is competent in the same manner as if there had 
been a reftisal to expunge ; and the saine principle would of 
course be applicable to the case of Freeholders giving no judg. 
ment ii^atever on a claim of enrolment \ 

The statute has not expressly provided any means of re- 
view of the judgment of freeholdera upon a claim of restric* 
tion ; but the Court sustained the competency of a complaint ' 
against a judgment of freeholders, restricting a qualification 
to cert^n lands in terms of the prayer of a petition, lodged 
at an election meeting by a freehotder, who had conveyed away 
a considerable part of the lands constituting his ori^nal quali- 
frcation *. Where a complaint is presented against a judg- 
ment of freeholders restricting a qualification to a part of the 
original estate, it is nedessary to pray not merely that the 
freeholders did wrong in restricting the qualification, but also 

' See the case of Campbell o. MacneU and Macconocby, 24th June 1773; 
Wight, p. 136. 

* Dempster and others v. Lyel, 3d March 1791 ; Fac According to the 
Faulty Report, the application for restriction was, by the miyoritj of the 
C<mrt, viewed as an objection made by the freeholder himself to his con- 
tinuing on the roll, in virtue of the lands formerly belonging to him ; and 
on that ground the competency was sustained. In the case of Stewart v, 
Campbell, 9th August 17749 the freeholder asked restriction at a Michael- 
mas meeting, but^no claim had been lodged previous to the meeting, and the 
Courly on the ground that no olgection had been lodged in due time when 
the aUeraAiott of dhnimstances toot place, dismissed the complaint. In 
later instances where the claim of restriction has been lodged in due time 
previous to a Michaelmas meeting, a complaint against the judgment re- 
stritfSng the quaBfication, htt been x^oeived without objection. See Gor- 
don o. Fairie, 10th Januaiy 1819 ; Fac 

q2 



244 OF COMPLAINT, 

that the freeholder shall be expunged from the roll ^ ; for 
if a freeholder chooses to restrict bis qualificatbn, be subjects 
himself to the risk of expulsion, if the Court ^ould be of 
opinion that tlie qualification as so restricted is insufficiait , - 

In the case of a complaint against an enrolment, the statute 
provides, diat the complaint diall be served ^ upon the per- 
^ son said to be wrongfuUy admitted to the roll ^.^ Any mis- 
nomer in the service, amounting to the citing of a different 
person from the true respondent, as, for example, by calling 
* him Thomas Gibson instead of Greorge Gibson, will prove 
fatal to the complaint ^. In the case of a complaint for re- 
fuung] to enrol the complmner, or for striking him off the 
roll,' the act directs warrant to be granted ' for summoning 
^ the person or persons upon whose objection or objections he 
' was 'refused to be admitted ^'. Accordingly, where only 
one of three objectors was cited, that circumstance was hd.d 
to be fatal to the proceedings ^. A nusnomer would be equal- 
ly fatal here as in the case of a complaint agiunst an enrol* 
ment. If the minutes do not express the objectcMrs, those 
who voted to sustidn the objections must be called ; and if the 
minutes give no light on that point either, then all the free- 
holders who were present at the meeting must be cited ®. But 
where, in consequence of the minutes not bearing the names 
of the objectors, a complainer is obliged to have recourse to 
those more troublesome, and expensive modes of citation, he 
is entitled to the costs which he has incurred in serving the 
complaint '7. 

> Lord Macdonald o. Grant, 6th March 18^; Shaw and Fac. 
•l6thGeo.II. c. 11. sect. 4. 

> Dickson v. Gibson, ISth Fehruary 1746 ; Falc See also the case of 
Young V. Johnston, January 1766, relating to buxgh elections ; Wi(|^t, 
p.388. 

« 16th Geo. II. c. 16. sect 4. 

^ Williamson «. Smith, 16th May 1790 ; Fac * Wight, p. i4& 

^ Govan v. Douglas and others, 4th March 1796 ; Fac and Sup. t» 
Wight, p. 11. J 



NEW OBJECTIONS MAY BE URGED. 245 

When a complaint has once been brought into Court, it is 
held to become the common cause of all the freeholders, so that 
it is not competent for those who are more immediately parties 
to it, to put an end to the proceedings by abandoning them, 
if any of the other freeholders wish to sist themselves as par- 
ties. If the original complainer agunst an enrolment dies or 
withdraws, it is competent for any other freeholder to take 
up the complaint, even after the lapse of four months from the 
enrolment ^i; and where the objectors against whom a com- 
plaint has been served, have withdrawn their opposition, the 
Court do not grant the prayer of the complaint, until they 
have first ordered the abandonment of the objections to be 
intimated by the Sheriff, to a meeting of the freeholders 
called for that purpose, so as to give any of them an oppor- 
tunity of still insisting in the objections, if they see cause •. 
In like manner, in a case where there was ground for suspect- 
ing a private understanding between the complainer and re-^ 
spondent, the Court allowed another freeholder to give in 
answers to the complaint '. 

When the merits of a qualification have been brought be- 
fore the Court of Session by complaint, the Court are not li- 
mited to the consideration of those particular objections 
wbidi have been stated to the frediolders ; but may also de- 
cide on the validity of objections now brought forward for 
the first time \ 

The next subject of inquiry is, whether a claimant can 
produce, to the Court of Session, on a complaint, titles or 
evidence which have not been laid before the freeholders. 



> Eraser v. Lord Woodhouselee, 19th June 1804 ; Fac 

* Sinclair and Sutherland v. Mackaj, 17th January 1765 ; Wight, p» 
147. O^lvie V. Sutherland, 14th June 1836 ; Shaw. 

» Anstruther Faterson ©. Elliot, November 1790 ; Sup. to Wight, p. li 
and 89 ; Bell, p. 427- 

♦ Stewart v, Dalrymple, 28th July 1761 ; Fac. 



S46 OF COMPLAINT. 



On this point, it 18 neceetaiy to diatiiiguish between those 
titles upon which the claimfuif s right to be enrolled niare im- 
mediately rests, and collateral or expbinatpry documents or 
evidenoe. The former comprehend bis diarter* saane, and 
disposition or retour, connecting hb infeftment wit^ the char- 
ter, and also the evidence of his valuation, whether retour or 
^rtificate of the con^missioners. With respect to these, the 
general rule is, that they must be produced to the meetiiig of 
freeholders, in order to entitle the claimant to be enrolled, 
and that they cannot be afterwards supplied in the Co^rt of 
Session. This sulo^ect has, however, been already oooadeiedy 
and one or two instances have been mentioned where the rule 
was somewhat relaxed ^ 

On the other hand, with respect to collateral documents 
and evidenoe, it has been held, that, where obj^tions ^ the 
daimant^s qualification have been made to the freeholders, ofi 
grounds not foreseen, si^ch objections may be remove4 by new 
explanatory evidence before the Court of Session ^ Ques- 
tions of this nature have generally occurred with reqjeet to 
^e identity of the lands contiuned in the charter of the 
daimant) with those lands entered in the cessJxioks as 
of the requisite valuation, and alleged by the claimant 
to be the same with those contained in his titles. C^uiw 
of enrolment have been repeatedly rejected by the free- 
holders, on the ground that there was no evidence of the 
Identity of the lands in the charter and those in the oess- 
books ; and' it will be observed, that, as the objections on this 
ground are made, without previous notice to the claimant, it 
cannot be expected that he should be prepared with evidence 
to rebut them hefofe the freeholders. The question has 
therefore arisen, whether it is competent, when the proceed- 
ings have been brought before the Court of Sesncm by com- 
plaint, to produce evidence calculated to remove these objec* 
tions ; and it is now quite settled, by many decisions, that it 

> P. 91. See also Wight, p. 144. * Wight, p. 144. 



NEW EVIDENCE. PEERAGE. 247 

is ocMnpetent to bring forward such evidence Thus, where 
a claim was made upon certain lands, and,*among8t others, 
ufoa * the lands of Inveraurie, and the lands of Inverhebit, 

* formerly called Middle or Litde Inverhebit, and now called 
' Bellchorach of Inverhebit ;^ and an arude in the valuation 
^ roll was referred to, stated thus, Inveraurie and Inverhebit 

* L. S50 ;^ it was objected, that there were three different 
fajfms of the name of Inverhebit, Easter, Wester, and Middle 
or Little Inverhebit^ and that no evidence was adduced to 
show that the article in the valuation roll referred only to 
Little Inverhebit. The freeholders sustained the objection ; 
but the Court allowed a proof of the identity of the lands, 
and, on advising it, sustained the claim ^ There are various 
subsequent cases to the same effect ^. 

On the principle, that a claimant may not have it in his 
power to produce collateral or suppletory evidence before 
the freeholders, the Court, in a case which has been already 
mentioned, allowed the commission, under which certain per- 
sons had granted a charter for another to a claimant, to be 
produced for the first time in the Court of Session ^. 

In the year 1790, a question occurred relative to the right 
of the Court of Session to investigate the objection to 
the continuance of a freeholder on the roll, that he had ac- 
quired by succession the right to a peerage, although he had 
not hitherto assumed it. The freeholders having repelled the 
objection, a complaint was presented to the Court of Session 
agfunst their judgment, when it was argued, inter aJia, for 
the objecting freeholders^ that the Court of Session had a sta- 
tutory jurisdiction to try all que8ti<Mis of enrolment, in which 
is comprehended the disqualification from the state of a 

1 Gordon v. Abercromby axi4 others, lltb March 1773; Fac 
*#firuce V. BavidflOD, Ist February 1791 ; Sup. to Wight, p. 6. Ogilvy 
V. Carnegie, 2d March 1796; lb. pi 6. Oovan v. Douglas and others, 4th 
March 1799 ; lb. p. a Buchanan v. Fisher, 7th July 1824 1 Shaw. 
' Proctor o. Carnegie, l^th May 1786 ; Fac. and sup, p. 30. 



248 OF COMPLAINT. 

peer, which is Jus sanguinis^ and cannot be abandoned ; and 
that, wherever jurisdiction is given, there must be a power to 
try incidental questions, although not originally competent to 
the Court. It was answered, inter alia^ that, although the 
fact of possession of a peerage might be tried incidentally in 
any court, when it was notorious and incontestible, the for- 
mal cognizance of the state of a peer was peculiar to the House 
of Peers, acting in virtue of a reference by the king. The 
Court allowed the complainers to prove that the respondent 
had succeeded to the peerage specified. Against this judgment 
a petition was presented, which was followed by answers, but 
the point was not again brought to a decision ^. 

* Dunbar c. Sinclair, 2cl February 1790 ; Fac The following note of 
the Opinion of Lord President Campbell is from his Session Papers: 

' First thing to be attended to, is the nature of the jurisdiction vested 

* in freeholders and Court of Session in cases of enrolment. By act 1681, 
' the fiieeholders entitled to revise and adjust their rolls in first instance, 
< and power of review declared to be in Parliament in second instance, or 
*■ in Court of Session, when Parliament or Convention was not sitting. 
' All questions to be determined summarily. 

' Power of review now in Coiurt of Session alone, sulgect to appeal to 
' House of Lords. 

' Jurisdiction ample as to the right of voting, or being enrolled, &c. 
*■ but freeholders a very limited court as to power of cognizance, as they 
' only meet once a year, finish at one sederunt, and cannot dte witnes- 

* ses, or issue dUigence for production of writings, &c But Court of Sea- 
' sion does not act merely as a court of appeal, but has originil juriadic- 
« tion, supplying the defects of the Court of Freeholders ; and, although 
( directed to proceed summarily, may grant proois, and do every thing 
*■ necessary for explicating. 

* New matter competent. Court once found otherwise in case of Cap- 
' tain Stewart, 1767 ; but decision erroneous, and altered in one of Gor. 
' don of Whitley and others ; Seeadqf SedertuU^ 17th December 1767, 
^ sect. 7. relative to proofi. Case of Sir Alexander Mackenzie and others 

o. Madeod of Cadboll in 1767. Cromarty Papers, No. 34; very long 

* investigation. 

* General rule as to jurisdiction. Every power understood to be con- 
' &ned, without which jurisdiction cannot be explicated. This Ulus. 
*»trated by examples ; ErsUne, p. 24. even in causes before infierior 
' courU 5 See KiUcemm, p. 277. Blair of Borguc, Court of Session 



PENALTY OX COMPLAINER. 249 

The statute has provided, * that if the judgment of free- 

* holders, refusing to admit, or striking of any person from 

*• has supreme jurisdiction. Competent to all civil rights, tn cases of en* 
' rolment, not only a common law jurisdiction, but ample powers glv6n 

* by statute. Same which was formeriy in Parliament. Right of voting 
' or standing on roll, involves in it all questions of title of qualification, 
*■ real or personal, and of course every qtuutio staita ad hunc ej/ectum; 
^ e^ff. bastardy, alienage, minority, husband and wife, peer or commoner 

* QuaOwnet ttoHu were, by civil law, considered as prejudicial, as ta- 
*■ king their rise from some other question, et aliis judlcijs prsejudicium &- 
*■ ciunt, «. fi. tit. de Agnoacendis et Alendis Liberis vel Parentibus, vel Pa* 

* tnmis vel libertis ; See Hein. Inst. tit. De Actionibus, ^ect 1 142. 

' Such prejudicial questions necessary for determination of the main 
*' question, may be tried by courts otherwise incompetent ; See Examples 
^ given by Erskine, and in Dictionary, voL i. p. 495. Ac and voL ill. p. 193. 
' Thus, a revenue question may be tried here indirectly and incidentally, 

* though not directly, being necessary to extricate jurisdiction. Same as 

* to crinunal and ecclesiastical cases ; See Kames*s History of Courts, 
*> Pi 341, &C. Case of Browne in Court of Common Pleas. 

*' Action lately brought before Court of Common Pleas by P. Browne, 
^ upholsterer in St PauPs Church Yard, to recover L. 1900, upon two po- 

* lides of insurance, for house and furniture, against Phoenix Assurance Of- 
*• fice. Defendants pleaded that he had wilfully burnt his own house. 
^ The cause was tried upon that issue ; defendants fidled ; and verdict 
^ against them for L. 2500. 

* ^ Question of peerage not directly competent here, but incidentally may 
'■ occur, and must be determined ad hunc ejffeehtm, or may be tried in- 

* directly. In case of Lady Emnaird, Commissaries indirectly determined 
^ a case of peerage : See Mem. for Mr Douglas, p. 75. 

The case of a service to any noble family is an indirect trial of a peer- 
*■ age ; case of Karl of Breadalbane, Marquis of Tweedale, Duke of Ar- 

* gyle, &C. Sometimes a competition of brieves ; late case of Caithness. 
*" What was it but an indirect trial of peerage? and indeed, one question 

* within another. 

^ Service was an indirect trial of peerage ; and &ct of marriage of Broy- 

* nach's ISither and mother was prejudicial All tried In this Court ; and 
^ BO doubt of competency. 

^ Sappoee affirmed or reversed in House of Lords upon appeal, this 

* vould make no diflerence, it is still only an indirect question ad hunc 
' efwhtm^ that is there tried. Yet the Earl of Caithness, his fether, when 
« he chdmed the peerage directly, was advised to proceed in another shape, 
^ by petition to the King, and 'remit to House of Lords. Proof in service 



9S0 OF COMPLAINT. 

the said roll, shall be affinned by the Court of Sesnon, the 
parson so complaining shall forfeit to the objector the sum 
of L. SO Sterlbg, with full costs of suit K' 

of no ayail theie, but still the judgment in the competition of brieves 
was condusiye od hime ^fmhm ; and one judgment might have stood in 
the one case» and a different one in the other. Case of Lord Anj^eaejr, 
contradictory judgments in Bngland and in Irehmd both effectuaL Caae 
of Lord WiUoughby, the r^ peer excluded from sitting in House of 
liOrds, by erroneous judgment in favour of another, so that there was a 
peer dejure, and another defaefo. 

*' Case of Douglas tried before Committee of House of Commons as a 
pr^udftdal question to right of ntting. . Judgment either way would not 
have been conclusive^ even against a subsequent committee, £u less 
ag^nst direct trial of tlie question in proper court 

* Late cases of Butherford and Colville ; served to their predecessors, 
and assumed titles, yet clerks much found fault with for calling theb- 
namesy i. «. for not exerdsing their own judgment in first instanoe $ 
House of Lords did it in second instance, but merely ad hme ^Msat, 
to determine Lord Catlicart*s seat. Nothing found as to ri|^t of either 
of these persons, so that they may come to next election of peerS} and 
tender their votes if they please. 

* Bight of this Court and of freeholders to determine incidentally on • 
question of peenge^ or rather upon the title of voting where the ftMsHio 
ttaiui is prejudicial, seems to be admitted in two oaae% ^ In case of 
notoriety, c ff, immediate younger brother succeeding to eldest, who 
dies unmarried; 2dl^ In cases where the proof is omj, and the fict in- 
staiitly verified, «. ^. nephew or cousin-german succeeding But where 
is the line to be drawn ? Are we to stop at first cousins, or second eou^ns, 
or where ? The investigation being of a greater extent, or smaller, can. 
not vary the general rule. Had decudoi^ m case of Stewart remained 
unaltered, thif would have been Cfmdudirei But, as matters now standi 
this Court cannot, with justice, d^y the proof of relevant ^ts, how- 
ever diflScult 

< Counsel for respondent admitted, that, in cases of pnptfl^ €. 9. where 
entailed estate depeoded on luocessioB to peeiage or not, as in cases of 
Wemyss, Pasmure and others, this Court was bound to try question of 
peerage, but contended that, if it was a mere giianft'g tMif, to th? effiKt 
of determining a man*s rank and condition in Mie country, this Court 
had no power* The distinction plausiUe, but not well Ibunded. It 

^ 16th Geo. II. c. 16. sect. 6. 3 



PENALTY ON COMPLAINER. 251 

The act, however, lias not impofied any penalty or costs cm 
freeholders complainiDg of an enrolment, or of a refusal tp ex* 

* migfat hold if there were no question of civil right depending on the is- 

* sue ; for then it would be the direct question of peerage, and nothing 
' else. But right of voting at an election, and of being enrolled, or conti- 
' nuing on the roll, is a question of civil right, in which both the interest 
' of the party, and of others, is involved. It is not merely a political in- 
' terest, but civil and patrimonial, the value of the freehold being thereby 
*" increased or diminished ; but suppose it were a political interest only, it 
^ is a question of that sort, which the law has committed to Court of Free- 

* holders in first instance, the Court of Session in the s^ond, and House 
*• of Lords by appeal in the third. J?yyo, f f the qwuHo siattu must be de- 
' termlned as prejudicial to that of voting, this prejudicial question must 
*• necessarily be subject to the cognizance of the same courts, for the law 

* haa not said, in any question of enrolment or of voting, that we are to 

* stop short, till a question necessarily prejudicial, shall be determined by 

* some other court If marriage or bastardy happens to be the pr^'udicial 
' question, we are not to stop till the Consistorial Court gives its judg- 
*• ment ; {Case qf Terce at Jiu reiicti) The direct question may never be 
' tried ; etyo, there would be a wrong without a remedy, — Nobody can 

* force him to apply to king. 

' If the question be forgery of the titles, and suppose the Court of Ses- 
sion were not competent in forgery, we would still go on to try it ad 
' hunc ^eetmi^ If peer or commoner hi^pens to be the question, we 

* must try whether the party is actually a commoner, i e. of that rank of 
' men which, by the act 1661 and 1681, and by the Articles of Union, are 
' alone entitled to elect and be elected for counties. This cannot be done 

* withoat determining that he is a peer, or not a peer, or, in l^gal Ian* 
' guage^ a greater baron, or lesser baron. 

' The task of a^usting the roUs of freeholders being now left to us, we 

* must perform it, just as the Scutch Parliament would have done, accord- 

* ing to the best lights afforded to us, but which will not be conclusive as 
\ to the state of the party, if he chooses to liave it tried in a different 

* shape. 

' We are not obliged to find tliat the freeholders have done right, or 

* have done wrong, but, ftipfr toia nifirfma, to determine whether the party 
*' claiming, or olyected to, ^all stand on the roll or not. 

^ The Committee of the House of Commons dpes no m(»re, or rather 

* does lesS) as it only detennines pK$ hae vy»i whether the party*s name is 
f.to he counted upon the roll or not, exactly as House of Lords did in 

* cases of Rutherford and Colvil. 

^ It was fiirther said, that there was a material difference between a 



S62 OF COMPLAINT. 

punge k person already on the roll. In such cases, therefore, 
the Court cannot impose any penalty, however frivolous the 

' peerage in possession, and in remoU pretence. But how is a peerage in 
' possewion to ^ defined ? Lord Colvil and Lord Rutherford have put 
^ themselves ii^ possession of title, yet their right has been justly called in 
' question. Sir Walter Montgomery calls himself Lord Lyle, and voted 
^ at an election of peers under protest An Earl of Monteith appeared, 
^ and voted, though held to be an impostor. Mr Fleming is in possession 

* of the title of Wigton, as &r as assuming the title goes ; but the House 
** of Lords has hi^ierto disallowed his title. The late Lord Seaforth was 
' no doubt a commoner, but he got upon the roll of Caithness, and was 
' elected for that county, without any qualification at all. Did this pos- 

* session put him in a better situation as to the question of ri^ht, tBan 
' if there had been no possession. 

' A younger brother, e> g. Lord Elphinstone, succeeding to the peerage 
' of his elder brother, and notoriously known to be a peer dejure^ iMy ab- 
^ stain firom assuming the title, purposely that he may elect or t>e elected 

< for a county in Scotland ; but, will the fiu;t of his unlawful possesion 
' make any difiereuce, either upon the question of right, or upon the ju- 

* risdiction of this Court, to try his title of voting, on complaint fit>m the 

* freeholders ? Will it preclude the House of Lords from trying the same 
*■ question by appeal, or the Committee of the House of Commons from 
*' trying his right to stand on the roll, or to be returned as member for the 

< county. It is the right, not the possession, that in every such case must 

* be tried. 

* It is said, that, if we exercise this right, we ought to do it with can- 

* tion and discretion. This may be true, and it is the only aigument on 

* that side which deserves to be listened to. It is an argument which may 

* apply more or less to every question of a prejudidal nature, where there 

< is another court more competent and more fit to try the direct question. 

*• Had the respondent said, I have presented my petition to the King, 

* and it is referred to the Committee of privileges in House of Lords ; I 

< have sent all the proofi^ and all the materiab there, to instruct my pe- 
^ digree, and to have the question solemnly tried ; in short, I am in 
*• tumu of having that matter discussed and determined by the proper 

* judicature, as quickly as ibrms will permit ;— this Court might then have 
' considered, whether, ex comUaie^ it was not proper to stop short for a 
^ time, and to give some indulgence to a party in that ffltnation. But, 

< instead of this, he gives an evasive answer ; he does not say that he has 
*• presented his petition ; and I suspect the fitct is, that it is purposely 



i 



COSTS, . 253 

complaint may be^ but they are of course at liberty to impose 
costs if they think fit. - 

^ kept back. He has not therefore proceeded hirly and bonafidey to have 
*■ the question determined in that shape, which he himself says is a most 
^ proper one, so that we have no choice left, but to proceed without delay. 

' Till the inquiry is finished he remains on the roll, and therefore sus- 
« tains no disadvantage. 

^ Case of a vagrant pleading privilege of peerage against arrest. Cguft 
^ wUl not shut the door against him ; but, in the mean time, must remain 
^ in prison till he make out his case. It is his own fault if he suffers, fron^ 
*• the apparent situation in which he stood. 

^ Case of English peer may be judged of here, as well as case of Scottish 
' peer, if claiming as a freeholder in Scotland- This Court cannot make a 
*■ minister of the Crospel, but we ma/ try whether he is duly presented or 
' not, to the efiect of judging whether he has a right to the stipend. 

' As to the conflict between different jurisdictions, it is well discussed 
' by Lord Karnes, History of Courts, p. 345. 

^ Lord Swinton, Ought to have answered explicitly, whether he was a 
*• peer or not. Clear that this Court can ineidenter try every question 
*" whatever, though not otherwise competent. No ground for distinguish- 
' ing whether proof easy or not. But Sir James being in possession as 
^ a freeholder, yre cannot turn him out in mean time, nee vi nee clam, &c. 
^ Duntmnan. Clear that complainers have a title and interest. Plea re- 
' levant, and must judge of it. Act contains no exception of case of peer- 
^ age. Competency alone the question here. If Sir James elected, Com- 

* mittee of House of Conunons wiU determine adhunc effecHim. — Dreghom* 
^ Doubt of that opinion. Assertion in point of fact, that petition signed, 

* and either presented, or purposely withheld. First question. Whether 
*■ have complainers a title and interest ? No doubt as to that, if de facto a 
^ peer. Admit that he is not by asserting that in petition ? He is claiming 
*• no privilege as a peer, e, g, to be free of arrest* Interest here too re- 
^ mote. Flea is, that he ought to have assumed a state which would have 
*• disqualified him. Is there any power to compel a man to assume peer- 
^ age ? I think there is a common law for the constitution, as well as for 

* private rights. If a remedy lies elsewhere, not necessary for this Court 
' to interfere. Think, in case of an entail, next heir may apply to King 

* or Parliament. But, Motmcfo, Sir James in possession, and this com- 
^ plaint not competent. While he is in course of establishing it, is he an^ 
*• mhihtedf What is intended for a man's advantage, not to be turned to 
' his prejudice. Case of Oliphant found, that a man might resign his 
^ peerage. There is no case but that of a child tn utero, where the hiw ac- 
^ celerates his state for his benefit. A qumstio status, and a possessory 



i 

I 254 OF COMPLAINT. 

Ill idle event of the Court of Sestton altering the judgment 
of the freeholders, by ordering any one to be added to Hit 



* question. Proper part U not here, nor the proper evidence. As to ju- 

* rifldiction of CoUrt, great doubt of it If cannot judge of H by declara. 
' tor, miUo mtiutf incidentally. Cattes of incidental jurisdiction do not ap- 

* pi J here. Thej applj only where the end is to forward justice, e.^ no 

* oocanon to stop here in a question of aliment, till marriage determined 
« by Commissaries. Caae of Bi^^remiii^io Court ^ 8$»difii io tfff p r ^ m ii 
^Mqueti^Um, Suppose a due o^ tldrlage,— will stet till master called. 

* King ou^t to be called.— Gttr^lMulOfitf. deadly of the opinion last de- 

* Uyered,— -not competent in any form to try a case of cbntrovierted peer- 

* age. In caiain dues may enquire, btlt not in such a case as tfaSs,— no- 

* toriety. But here no such evidence of peerage as we can admit,— must 
^ be continued in possession. Case of Forbes and Lady StxAthmore, — 

* called here for payment of debt,— could not proceed tiH declarator of 
' marriage before proper covLrL-^BoehfUlg, Objection here relevant In 

* Cmtrt qf JutiMaryj if djielkn qf pserdpe made^ U wnM hs tiby Awonof- 

* nUint to stop short. Same as diligence, — ^tendency of plea is to ttialce him 
' both peer and commoner.— ^£^(nMi^Alfl^ I^tinction of peers and com- 
*■ moners. Jurisdiction of freeholderiB, &c. gdes to disqualification resl or 

* personal If allegation now made goes to a change of his personal si- 
« tuation, every fireeholder entitled to bring it her^ ¥vtedy that title of 

' *• peerage devolves jure oanguinit. Nature and siibstahce of issue is this^- 
** Ybu are not a commoner.' He answers, * I hope to be so, but am not 
" so yet.* change lii your personal circumstances. Every man vested 
*■ with a right, entitled to try it Every door.t:ieeper of fioiise of Lords 

< trys it every day in first instance,*i^not merely a possessory question, 
' must try the right. At a loss to detiermine what is possession of peer- 

< age. Do not know whether there is another case to dedde or not Case 
' of Sir Wiljiam M , , bill signed \ViDiam Montgomery— «£%ro«t. 
« If personal situation altered, this muSt b^ coitepetent, «. ^. attidnted of 

< high treason. Succession to a peerage lio exception from that rolei 

* Une of notoriety wiU not do,.— no instance of a jurisdiction regulated 

* by popular opinions or ideas, — no instance of a direct trial of peer^, 

* except in two cases, dther that the party himself applies to king, or that 

* an order issues, directed to particular peers. As to possession, his ia- 
( suming the title or not, will not vary the right — JifbnMfe. .Clear that 
« jurisdiction is competent ; distinction between right of peen^and caMftue 
^ oithat right Freeholders would apply to ho other court. No matler 
' whether goes to ten generations or one. If election tiAns upoh hts vote, 
' will not House of Commons determine ?^^dfgrove* In case of Itr Dou- 

< glass would not listen to any objection t< 



ALTERATION IN THE ROLL. 255 

roll, or expuojied from it, the act provides, that * the she- 
* riff or steward^s clerk shall, upon presenting to him the ex- 
^ tract of such judgment, forthwith make the alteration there- 
' by directed, in the books that are kept by him *,"* under a 
penalty of L. 100 to the person in whose favour the jtidg- 
ment has been given. 

^ IM Geo. II. c la. aect. 5. 



( 256 ) 



CHAPTER III. 

OF CE&T<^IK PERSONAL DISQUALIFICATIONS FROM BEING EN- 
ROLLED OR TOTING. 

A u]fiovL cannot be admitted on the roll The act 1681 
provides, that * Minority being instantly verified'* shall be a 
disqualification ; and from the context it may be collected, that 
it is meant to be enacted that it shall be an objection to ^ the 
* admitting to^ the roll, and not merely to voting, although 
certainly Mr Wight has taken up a different view of this pro- 
vision ^ The act 1707,-c. 8, declares, * that none shall be 
' capable to. elect or be elected for any of the said estates, but 
< such as are twenty-one years of age complete ;^ but, from a 
decision in regard to the formula against popery, to be men- 
tioned immediately, it appears that it would be held that 
those expres^ons amount to a disqualification from being ad- 
mitted on the roU^ and also would authorise the freeholders to 
strike off one already on the roll, even after four months, if he 
was discovered to be a minor. In a previous case, indeed, 
the Court either giving this interpretation to the act ITOTy or 
proceeding on the act 1681, ordered a gentleman to be struck 
off the roll who had been enrolled a few months before at- 
taining majority, under a proviso that he should not be en- 
titled to vote in any question until he was of perfect age ; and 
this judgment the Court pronounced, although he had in the 
mean time become major '. 

A person who has been cognosced as insane cannot be en- 
rolled. But suppose that a claim is presented for one who 
has not been cognosced, and is not otherwise under legal tu- 
tory as insane, it would appear that the claim cannot be re- 

^ Page 267. Mr Bell supports the view in the text, p. 33a 
* Macleod v. Gordon, December 1765 ; Wight, p. 267* 



CATHOLIC. 857 

jected on mere ali^ation that he is not of soand mind ; and 
it seems doubtful^ if any other evidence would be admissible^ 
unless, indeed, the personal appearance of the claimant should 
carry conviction to the minds of all present. Again, let us 
suppose that a pei*son who is already on the roll, should ap- 
pear and claim a vote, although evidently labouring under 
strong insanity, it would seem that the preses would be jus- 
tified in rejecting the vote. A plan which has been recom- 
mended in England for excluding such votes, and which, to a 
certain extent, might be effectual, is to be strict in requiring 
the person to take the usual oaths ^ 

The act 1707, c. 8, provides, that < none shall be capable 

* to ekci or be elected, for any of the saids estates,^ but such as 
are * protestant, excluding all papists, or such who, being 

* suspect of popery and required, refuse to swear and sub- 
^ scribe the formula contained in the third act, made in the 
^ eighth and ninth sessions of King William's Parliament, in- 

* tituled Act for Preventing the Growth of Popery.' If the 
terms of this statute are taken literally, there is perhaps no' 
authority for holding that a person already on the roll may 
be struck off for refusing the formula *. But in a case in 
which a claimant having been enrolled at Michaelmas, and 
having, at an election meeting in July thereafter, refused the 
formula of the act of William when tendered, the Court of 
Session found that he must be expunged from the roll, al- 
though more than four months had thus elapsed between the 
enrolment and the presenting of the complaint ^. 

^ Male on Elections, p>l66. Second Edition. 

< See Wight, p. 269, note. 

^ Feiguson o. Glendonwjrne, 17th February 1803 ; Van. 

Note of the opimon qf Lord Preaident Cam^itbeU/rom hU Seeeian Papen. 

^ Objection of being a Roman catholic. Respondents* construction of 

' the act 1793 not well founded, dear that the disqualification of the act 

*- 1797 continues as to elections, though Roman catholics arefreedfrom other 

*« disabilities. No distinction between papists and Roman catholics in 

^ our statutory language. The act 1797 says nothing about enrolment^ 



358 OF PERSONAL DISQUALIFICATIONS. 

By the act IMi OeoHI. c. 88^ it is provided, that no per* 
son sball be capable * of being elected, or of Totiag in axkj 
AjMrtion of a member of Parliament for any shire or bo- 
^tigh)^ who shall have been twice present witUn a year of 
such election at divine service in any epaso^Md meeting in 
Scotland, not held and allowed in pursuance of the act 10th 
Atme, c« 6 \ or not roistered as directed by the act (19tfa 
G^. II.), or where the minbfer did not in express terms 
pray for the lung by name, and all the royal family ; and it is 
declared, that this objection may be stated by ' any candi- 
^ date or member of the meeting assembled for any such elec- 
' tion ;'* and may be proved by one or moire witnesses upon 
oath, or by referring it to the oath of the perten objected to, 
which oath the preses or derk of such meeting is empowered 
to administer. 

It seems to fidlow, from the expressions of this act^ that 
this objection cannot be stated before the election of preses 
and derk ; because the disqualification is stated to be * from 

* voting in any election of a member of Parliament ^ and, be- 
cause it is the pieses or clerk of the meeting who is em- 

' but as it makes a total disability of electing or being elected, it follows, 

* of coane, that the party liable to such diaqualiflcation, ought not to be 

* enrolled, or, when the olgection is diaeoTered, which can only be on his 
' refuaing to talce the formula, he ought to be expuxiged ; as in the case of 
' minors,*' peers, Ac The rule of four months does not apply to latent 
^ personal disqualifications. Clear that the objection here was made be- 
' fore the election of member, and he ought then to have been struck off, 

* on account of his reftisaL Whether his Tote must be counted for 

* preses and clerk, it is not h^ffu leei to enquire. Had the legislature 
' thought that it was possible for a Roman csthoHc to be on the roll, he 
' would hare been included in the description of persons mentioned in the 
' act S7th Geo. III. c. 196.— Jtelft* Cktk. Roman catholic not entitled to 

* elect, or to b^ elected. Act IW Hot repealed.— Jllted^w&mJfc^. Same ; 
^ bat heaiUite as to the question of form, whether he may not stand on the 

* roU, ^ough not entitled to vote ? — Cffriff. Cannot be allowed.* 

* By this act it is, httr tftb, prorided, thst the pAifi& must be ordained 
by a protestaitt bishop, and take certain attia to Goverliment, and jifty 
for the Queen, and that the meeting shall be with open doors. 



PBBJUEY. IN9AMY. 309 

powjtwd ta fhninirtar ihe oath of referepoe ^ It seems dear 
tiwt it caonot be stftted at a Michaelmas Meedng. 

The statute 2d Gea II. c« 5M, has provided, that no per- 
flon cxamcted of wilftd and corrupt perjury, or subcnnation 
of peijurj, shall be capable of voting in any election of a 
member of Pariiament 

The further question occurs, wheth^ tfiose, who have been 
dedand infaiyms by the sentenoe of a court for other ctka- 
eeS) or have been convicted of other crimes inferring infamy, 
are disqualified from vodng. Infamy is sometimes appoint- 
ed under certain statutes as the punishment of certain of- 
fences, as in the case of fraudulent^bankruptcy, bigamy, &c. ; 
and sometimes it naturally attaches to a conviction, by the 
verdict of a juiy, of offences of a base and degrading nature, 
as theft, or which involve deep deceit and wilful wrong, as 
forgery and swindling '. This stigma has also been aflSxed 
by the Courts of Justiciary and of Session to persons guilty 
of malversations in situations of public trust. 

By the act 1681, c. 18, fraudulent bankrupts are declared 
fiihe and infimious, and incapable of honours, dignities or 
ofioes, or of being jurymen or witnesses ; and yet it was 
found in one instance, that a person declared, by the Court 
of Session, infamous in terms of this act, was capable of vo- 
ting, and of being enrolled'. Lewd Elchies, however, who 
laports the ease, si^, that several of the judges thought the 
dbjectlon good, and others, including himself, were not dear, 
and did not vote ^. 

* Sot Wight, p. SfS. * Hutne, toL IL p. 271. 

' Cme of flkitherialidahin, 17th February 1741 ; £Jdil«a, M. P. Hlo. 7. 

^ In wmMunr cass^ alMtiie of regsUtj^ who had been fbttod gidltj, by the 
Osiart of flabrioa, of mm ffl^l eitortion of moneys wUlehe acted ao a 
jadge, and had been dedated incapable of exerdalng the offloe of a judge 
ia att fhDO conbig^ was Ibund not to be disqualified from heiiig a eoaneU- 
kr hi a bOTDUglr « Buokney and others o-Ferrier, leth March 17Mlt Fac. 
and SeiiiMi Papefa. And yet tUi was an ofihnoe to wUch it appears that 
btftny ought naUifally lo have been atlaahed. 

r2 



S60 OF PERSONAL DISQUALIFICATIONS. 

In this caae thereoertainly was no conviction by the verdict of 
a jury; but it has been rather with respect to sentences of in- 
ferior judges without a jury, that a disdncdon on this ground 
has been drawn regarding the disqualification of witnesses by 
infamy ^ At all events, it can hardly be doubted, that per- 
sons convicted by the verdict of a jury of the higher species 
of crimes, such as theft or f^Egeiy, must be held as incapable 
of exercising the elective franchise. In England, convicted 
fdgns are held to be disqualified This was held in the com- 
mittee even with respect to a conviction at the Quarter Ses- 
sicHis, for stealing some horse furniture, and in which the sen- 
tence was only hard labour for fourteen days \ 

The eld|^t son of a Soots ^r is not entitled ' to beenroll- 

> Hume, voL iL p, 342. * 1 PeckweH, 60& 

' Lord Daer v. Keith Stewart and others, 24th Jainuuy 1799 ; Fac. 
Ncte$'^tk0 OpmkmM ^ ^ JudgeB from A$ Sesakm Papen i^Lmrd Ffwmr 

* 24IA January 1791 After hearing—Xortf Hmlm. Difficult to go fir. 

' ther back than 1587* Persona someUmea set down by mistake aa pre- 

* aent when they were not ; Montroae an example in 1669. Besident 
*' fi'edudders only oouhf vote, yet this afterwards fell into diauae. In 

* Parliament 1S61, and at other timea, it waa very deairBble to hare bad 

* eldest sons of peers. As to loss of recorda, will presume finwuoM/aia. 
^ Fragment 1680 not conclusive, aa the heir apparent seems to have beep 

* excluded. Case of Tarbat Parliament obsequious to crown ; and 
^ Ijord Cromarty a fiivourite. Beaaona assigned, not well fimnded. 8a« 
' crifice to altar of popularity. No aiich akar then. Succeeded by Sir 
' G. Monro of Culcaim, whose politics were very diflferent Then case 
' of Lord Livingstone. Poll elections of the burghs were in consequence 

* of recommendation of Prince of Orange. Matters ran hi{^ in Parlia- 
' ment during all the leign of King William* If ddeal aona had been 
^ an^iosed to have right, would have asserted. 1706. Four oauaael 

* heard. Solemn determination. As tocaaeof Dukeof Athols^-JlittU- 

* my carried no ftrther than use had carried i t Ja lia w Wfc SIniigetlMt 
^ claimant should not have same privilege with eveiy . Oaortlta- 
' tion daily improved. To deprive him, would require positive enaetaentv 
' or something very decisive. Particular reasona Ibr retohitiona in P«r- 
^liament — RoeMlk, Claimant ia a commoner. Sul^ject to trial aa^ aucb. 
, Disuse not sufficient, ilsi nmm faetUkOU^ and depending on choice af 



ELDEST SON OF SCOTTISH PEER. 26l 

ed ; but the eldest son of a British peer is not disqualified 
from being enrolled ^ 

othen. QuestioD quite new u to the House of CommoDfl,— not very 
competent to judge of points in the law of Scotland. Lord Aberdeen 
would not have permitted his son to stand candidate lor Aberdeenshire, 
if he had not thought the matter entire. English lawyers could not 
know much of Scotch hLW^^Monboddo. Two questions, Itiy Whether 
claimant has a right to be enrolled; 2d; Eligibility. In England, 
many instances of this. Eligibility not competent Clear that he is 
entitled to be enrolled. No custom proved as to not voting.— />rv^- 
honu Opinion stands clear of antiquities. A commoner. Title and 
precedency to rank only. Expectancy of a peerage is not, in general, 
a good objection. Petition in I7O8 does not go upon antiquity or usage, 
but singly upon expediency. As to Union, the only articles of Union 
that are unalterable, are religion and malt-tax. But redress can only 
lie in Parliament, where all parties can be present by themselves, or re- 
presentatives. No difference between enrolment and eligibility. For dii- 
miainff complaint, because usage of Parliament is against it, and we can- 
not give effectual redress. We cannot invert possession summarily. — 
Eikffrove. Expediency cannot be admitted. If I could throw out of 
view every thing previous to 1686, would be of opinion that not disqua- 
lified. Parliament not entitled to make law by a resolution, but could 
expound law. Persons living in I7O8 may have known what we do not 
know.— ^ttt/HV-C/M'il. In what capacity they attended before 1587 cannot 
now be cleared up. In 1685 we do not see the proposition controverted. 
Clear that not eligible. — Swmion. Same. — Dunrinnan* 'SBmc^^ffendet' 
Umd. Question is, What was the constitution of Scotland at Union. We 
scarcely had a Parliament before Union. Usage of greatest weight. 
S0ri» rwftm jwBeaUtrum ; what passed at Union. Decision 1708.^ 

^ Abercromby e. Speirs and others, 9th March 1862 ; Fac 

Noie from th0 Set&Um Papen ^ Lord Pretideni CampbelL 
* iluettion. Whether eldest son of a British peer lately created can be 

* enrolled ? The question, in the case of Lord Daer, turned altogether 

* upon the constitution of the Scots Parliament before the Union, and the 

* Scots Peenge at that period. Complainer's predecessor was not a Scots 

* peer, and he himself is not the son of a Scots peer or peeress ; and 

* therefore the disqualification does not attach to him ; See Replies^ p. 38, 
^ Ac A Scots peer made a British peer since Union is in different situa- 
*• tion, for he stiil remains a Scots peer, as well as a British peer, and votes 

* as a Scots peer, for the sixteen peers of Scotland. Comphdner has no 



262 



OF PERSONAL DISQUALIFICATIONS. 



By the act 82d 6«o. II. c. 41, it was provided, diat < no 
commissioner, collector, supervisor, ganger, or otiier cficer 
or person whatsoever, concerned or employed in the charg- 
ing, collecting, levyii^ or managing the duties of jexdse, or 
any bnuich or part thereof; nor any conuaaissioner, collec- 
tor, comptroller, searcher, or other officer or penon whatso- 
ever, concerned or employed in the charging, coUecling, 
levjring, or manag^g the customs, or any branch or part 

such privilege, having no connection at all with the old Soota pe^mge^ 
He is not represented bj the sixteen Scots Peers, and he has no conosn 
with their elections.— Jii«(ice.Cferik. Although Scots peers axe declared 
peers of Britain, il does not follow eoomoerao^ that British peers are made 
Scots. Nothing disqualifies an English peer's eldest son^ — Henmmd^ 
Former decision in case of Lord Daer right ; See Hataell's Eeporfts. /te 
leg teripia. But no precedent or rule in the conatitution iriiich ai^ee 
to the present case. An Irish peer himself mi^ be enrolled here, if not 
actually in Parliament.— fTootAovcsfetf. Strict interpretation* Freehold* 
ers have done wrong.^— Cultoi. Judgment in case of Lord Daer well 
founded. As to case in 1708 ; See Lord Somer's tracts, and see collected 
decisions in Lord Daer's case.-^ilfMdoi0danAr. Tzaiuient instanoes in a 
few (^aes of Lord St9pford, Jkc* sitting since Union, although Britasih 
peers, not sufficient to form usage. Peers of Great Britain not a patri- 
cian order, at least their fimailies are not. An English peer himself was 
a commoner here, and might have beep elected for a countj or buiyh in 
Scotland, and would have been tried by our law fi>r a crime gnamitUd 
here, and not bj his Uw* If the disabiUtjr applies to peers of Scotland 
created British peers since Union, it is difficult to distinguish Mv^en 
their case and pure British peers. Therefore the judgment of the free- 
holders ought to be ajdbored to.«^BaiifM%«w. The disability doea not ap- 
ply — Cr9ig» A British peer has not all the pririlsgsa of a Scota peer; 
cannot elect or be elected as a Scots peer. JKtyov Not sytjoel to tiiedis- 
qualifieation8..^ilftfMivn. Some doubt here- Suppose question hsd oc- 
curred recently aft^ Union, when it was undeistood that psen of Scot- 
land, created British peers after the Union, were incaptiiie of eleeilng, 

or l^eiag^ected.' 

Blliot v. Freeiu>lders of Selkirkshire, lltb Kax. ia06 ; Fae. : 
N9ki/mn Smi^ Paper* nfLord Premdemi CampMl' 

' Case of Abercromby decisive. Scots peers, a distinct bocfy of men 
' represented ia a partieular way, and not to be eonfbunded with ciUier 
* peers.' 



BEYENUja OFFICERS. 363 

thei?eof ; nor iiny ooauniaskmer, officer, cm: other person con- 
cerned or employed in collecting, reonving or ma n a gin g any 
of the duties on stamped vellum, parchment and paper ; 
nor any person appcnnted by the oommisaonerB for distribu- 
ting of stamps ; nor any oommisnoner, officer, or other per- 4f 
son employed in oollecsting, levying or managing any of the 
duties on salt ; nor any surveyor, ccdlector, comptroller, in* 
spector, officer, or other person employed in collecting, ma- 
naging or receiving the duties on windows or houses ; nor 
any postmaster, postmasters-genend, or his or their deputy, 
or deputies, or «iy person employed by or under him or 
them, in receiving, collecting or managing the revenue of 
the post-office, or any part thereof; nor any captain, master 
or mate of any ship, packet, or other vessel, employed by or 
under the postmaster, or postmasters*general, in conveying 
the mail to and from foreign ports, shall be capable of giv- 
ing his vote for the election of any knight of the shire, com- 
missioner, citizen, bucgess, or baron, to serve in Parliament 
for any county, stewartry, city, borough, or onque port, or 
for choosing any delegate in whom the right of electing 
members to serve in Parliament for that part of Great Bri- 
tain called Scotland is vested.^ 
If any of these persons shall vote during the dme he holds 
such office, or within a twelvemonth after he gives it up, his 
vote is null, and he forfeits L. 100, one-half to the informer, 
and the other half to be paid to the derk of the Justices of the 
Peace, to be applied as the JusUces shall think fit ; and to be 
recovered by any one who shall sue for the same by sum- 
mary complaint before the Court of Session ; and the person 
convicted thereby becomes incapable of bearing any office or 
place of trust under his Majesty K 

This disqualification does not extend to the commissioners 
of the land-tax, nor to any one acting under those commis- 
sioners, in assessing or collecting the land-tax, or any other 

1 23d Geo, III. c 41. sect. 1. 



S64 OF PERSONAL DISQUALIFICATIONS. 

duties already imposed, or hereafter to be imposed, by Par- 
liament ^ Neither does it apply to any office held, or usually 
i;ranted to be held, by leDla^patent for any estate of inheri- 
tance or freehcdd *. 

No person shall incur the penalty of this act, unless the 
prosecution is commenced within twelve months after such 
penalty has been incurred \ 

The act S2d Greo. III. c 41, did not extend its disabilities 
to freeholders voting in the chdce of preses and cl^k, or in 
adjusting the rolls. This defect was remedied by the statute 
37th Geo. lil. c. 1S8, which provided, that < no person de- 
^ scribed in the said recited act, (i. e. SStd Geo. III. c. 41.), 
' and thereby rendered incapable of voting in the election of 
' members to serve in Parliament, shall be capable of voting 

* at any election for the choice of preses or clerk to the free- 

* holders of any county in that part of Great Britain called 
' Sccilandf or in any questions relative to the adjustment of 
^ the roll of freeholders of any such county, not only at such 
*- elections, but at idl other meetings of the freeholders of any 
^ such county ; and if any person, hereby made incapable of 
' voting, shall nevertheless presume to give his vote during 

* the time he shall hold, or within twelve kalendar months af- 
^ ter he shall cease to hold or execute any of the offices men- 

* tioned in the said act, contrary to the true intent and mean- 

* ing of this act, such votesy so given, sliaU be held nuH and 
•* void to all intents and purposes whatsoever."* The offender 
was farther made liable in the same penalties and disabilities 
-prescribed by the act 22d Geo. III. ; the fine to be divided 
in the same manner ; and to be recovered by summary com- 
plaint before the Court of Session. 

The commissioners of the land-tax were, by certain acts, 
appointed to levy the window-duties and income-tax, with 
|)ower to name their collectors. A gentleman, who was col- 
lector of land-tax, appointed by the commissioners, had been 

' lb. sect. 2. « lb. sect 3. » lb. »cct. 6. 



BEVENtJE OFPICERS. 265 

aifio nominated to the offices of oAecting] thes^ additionid 
dutiesy leodving a portion of the duties as his recompence. 
At the time of an election of a member for the stewartry of 
Kirkcudbright, he was collector and assessor of the house and 
window duties for Dumfriesshire, and had been collector of 
the income-tax for the same county, within twelve months 
preceding the election. The parliamentary preses at an elec- 
tion meeting declined, on these grounds, to call his vote in 
the dioice of preses and clerk. The Court of Session, how- 
evisr, were unanimously of opinion that he was not disquali- 
fied under the act S2d Geo. II. and 37th Geo. III., as nei- 
ther the appointment nor the emolument in this case flowed 
immediately from government '. In another case, a person 
who received a quantity of stamps from the distributor at 
Cupar, for distribution at Kinghorn, was held not to be dis- 
qualified, as he was not under the qpntroul of the commis- 
sioners of the stamp-office, nor an immediate servant of go- 
vernment *. 

1 Heron v. Maxwell, Uth February 1803; Fac. 

NoUfrom the Seuion Papers of Lord President CampbelL 
* Revenue officer. Duty of Parliamentary preses. His office is merely 
ministeriaL He cannot erect himself into a court, and exercise jurisdic- 
tion. His power of cognisance is of the most limited Irind, no higher 
than that of the sheriff-clerk, acting in his absence, or the clerics of 
Session in the election of peers. The act 37th of his Migesty does not 
enlarge his powers. He must call every name on the roU, good or bad, 
otherwise, if he omits to call, and receive any name, he does it tuo peri- 
euiOy and is liable in penalties if he does wrong ; and any person who 
wrongfiilly gives a vote, does it also euo perieulo. This is the case even 
in those instances which are mentioned in p. 3. of the replies. The 
power, it is said, must be somewhere. This is true, but not with him. 
Complainer*s office did not disqualify him, ergo hia vote must be counted. ' 
The Committee of the House of Commons will certainly count it ; and . 
we must hold it good here. The best, or rather the only, defence which I 
the respondent can make, is, that he truly did not omit the complainer, 
but called him, and that, if there was any mistake as to counting the / 
vote, it was not his doing, but that of the clerk. If there be any dispute 
about this, the cause must go to proof.* 
* Goodnr v, Hutton, 26th February 1803 ; Fac. 



H69 OF PEBfiONAX. PISQUAXIFICATIONS. 

tk9nHiS^» otfaar bo4i«8 ocNrporate, akbougb io&ft in 
laD43 holding of tbe onoinit iiiLve no right to ftand on the roll 
of fmbxMmh The Usmn of Fioiley had stood for many 
yi^ffrs w tb^ roll of AenffewBbixe, and had been in the regu- 
lar me of sending tp the m^eiAngB of fireeholdeffB a ddegate, 
who Toted ip all queetiona at Micfaaehnas or .ebotion meat- 
inga. In the yemr 1760, the right of diis burgh to atandao 
the xoll was olgected to, on the general gcouod of the inca- 
pucity of bodies onrporate to exercise the elective finiaehise 
in oountiee ; iuk} the Court <^ SessioD found aecsordingly that 
the town b^dnp jrig^t to atand on the roll ^ 

> Stewart o. Borougk of Pai«]e7,ethjitoehl760; Fac. 



( aw ) 



CHAPTER IV. 

OF THOSE PBJ180K6 SVTlJhlS^J) TQ IW CH09KK BSPEUESSKTA- 
TIYSS IN PARLIAMENT OF A SHIHe IN ^{^OTI^AND. 

Tj9E qwlification, in x^^poci pf ealitfa, iKhich wtit)^ a per- 
aoo to be c\Hmn tbi» r«pi<ewQtiil»ve of « ^pottiah 4»uiily in 
PiipluiQi^t, is ibe same ia ipoiat of holdifig, vulg^iUQiiy &«., 
witb tliat whicb enables bim to vole ia the ekption «f siutb a 
re^iresentativ^, no one beiiig entitled to be cbosen who has 
not been placed upon the frediolders' roll on a k^I qisalifi- 
catioQ. When a person, however, has onoe -beqn duly chosen 
GQmmiafliQner for a county, he will cofitioue to retain bis seat 
in Parhament, although he should afterwards be divested of 
the estate on which he was enrolled a freeholder, unless it be 
held that the House of CoQiinons has some power to deprive 
blip of his seat. It is at least certain, ibat mather the free- 
holders, nor any odier court in Scotland, have the right of 
depriving him of his privilege. 

There are mmy permmal circumstances cbsablii^ indivi- 
duals frcHn bdug elected to represent a oowaly. These dis- 
quali^cations arise not only from various laws expii^ady ^ 
{rficable to Scotland^ but also from a general enaeting clause 
of the statute 6th Anne, 6. 7. sect. 80, by whicb it was pro- 
vided, that every perapn disabled from sitting in the House 
of Commons of England, should also be disabled frpm siting 
in the House of CommpAs of Great Britaio* This clause has 
had the e£Pect of introducing all the disabilities which, before 
the Union, prevented any one from b^g chosen a member 
of the English House of Commons. 

The eldest sons of peers, for a considerable time before the 
Union, were understood to be disqualified from ]:>epresenting 



868 WHO MAY BE ELECTED FOR A COUNTY. 

« oountjr or burg^ in the Parliament of Scotland ^; and it is 
now settled that they cannot be admitted to the roll of free- 
hoUen *, and therefore cannot be choaen to represent a county 
in Scotland. 

Minws were, by the act 1707, c. 8, passed at the time of 
the Umon, declared to be incapable of bdng elected for any 
of the estates in Parliament 

Aliens cannot be elected. 

By act 12th and ISth Will. III. c. ft. sect. 3, it is pro- 
Tided, that no person bom out of the kingdoms of England, 
Scotland, or Ireland, or the dominions thereunto bdonging, 
although naturalized or made a demzen, unless bom of Eng- 
lish parents, shall be capable to be a member of either House 
of Parliament And by act 1st Greo. I. stat 2. c. 4. sect 4, 
it is enacted, that no person shall hereafter be naturalized, 
unless in the bill there shall be a clause providing that such 
person shall not be enabled to be a member of the House of 
Commons. 

Persons convicted of treason or felony are ineligible. The 
same rule also appears to apply to one outlawed for a crime'. 

By act 41st Greo. III. c. 6S. sect 2, it is provided, that if 
any ordained priest, or deacon, or any minister of the Church 
of Scotland, shall be elected to serve in Parliament, such elec- 
tion shall be void ; and if any person, after his election, shall 
be ordained priest, or deacon, or become a minister of the 
Church of Scotland, his seat shall become void. And, by 
sect. 4, celebration of divine service, according to the rites 
of the Churches cS England or Scotland, in any church or 
chapel consecrated or set apart for divine service, shall be 
prima Jade evidence that such person is priest, deacon, or 
minister. 

The Judges of the Courts of Sesmon and Justidary, and 

1 See Wight, p. 869 «l M?. 

* Lord Daer v. Keith Stewart and others, 24th January 1 708 ; Fac. Aff^ 

* See Male on Elections, p. 3a 



JUDGES AND 8HEEIFF8 DISQUALIFIED* 809 

Bar(U)ft of Exchequer, in Scotland, are dedared, by act 7tb 
Greo. II. c. 16. sect 4, inciqpable cd being ekded^ or qfMkig 
or votings as membo^ of the House of Conmions. 

By act Slst Greo. II. c. 19. sect. 11, no sheriff or steward- 
depute in Scotland, shall be capable of being elected^ or qf 
eUtinffy or votings as a member of the House of Commons. 

By the act 6th Anne, c. 7. sect 25, it is provided, that no 
person having any new office or place of profit under the 
Crown, created or erected since S5th October 1725, or to be 
created hereafter, nor any commissdoner, subcommissicmer, 
secretary or receiver of prizes, nor any comptroller of army- 
accounts, nor oommissbner of transports of sick and wounded, 
of wine-licences, or of the navy empbyed in any of the out- 
ports, nor any governor or deputy-governor of any of the 
plantaUoDs, nor any person having any pension from the 
Crown during pleasure (extended by 1st Greo. I. c. 56, to any 
person having a pension for It definite term of years), shall be 
cf^ble of being dededj or of sitting or voting, as a member 
of the House df Commons. By the same act, sect S6, it is 
also provided, that if any member of the House of Commons 
accept a place of profit tmder the Crown, his election shall be 
void ; but that he may be re-elected. And, by sect 28, it 
is provided, that nothing in the act shall extend to any mem- 
ber of the House of Conunons being an officer in the army 
or navy who shall receive any new commission. 

By act 15th Geo. II. c 22, it is provided, that no com^. 
misBioiier of the revenue in Ireland, nor oommianoner oi the 
navy or victualling offices, nor any deputies or clerks in any 
of the said offices, or in the offices of Lord High Treasiuer, 
or of commissioners of the Treasury, or of the auditor of re- 
ceipt of Exchequer, or of the tellers of Exchequer, or of the 
chancdlor of Exchequer, or of the paymaster of the Army 
or Navy, or of the principal Secretaries of State, or of the 
commissioners of salt, or stamps, or af^als, or wine-Ucences, 
or hackney ooadies, or hawkers and pedlars, nor any person 



3 79 WHO IIA.V iWL RIJSOTMJ^ VCftl^Ar COUNT Y. 

hMtfiy ai^ ofioe a Mmmtm at Oibrdoir^ MCftpl^ offioera 
of i^^idtnte tlrtMy SMI bd cflpOife of Mn^ finsrid^ of of #i^ 
<tf^ or tio^ji^y m m tiletnbiv oFthe Houaei of CoiaftiOM< 

Sy aet i2d€bdi lU.c^ 4fi^ieat^ 1, kls ptotidgdl) that ny 
pttnon iHrho dudlboU any <toiitr8ct,agiiNni0iit,(>r etMOMAcifk^ 
witfa^ itfider,or fiomilbe ConmilnoiMfa of tba Treatiuy) or 
of the Navj^ or VictaiaUiHg Offiee, or widt die Mmter-OeMral 
or Beard of Ordnance, or with any penom wfaataoerer, oa 
aeeoHQi of the pubhe service^ ihall be incafMdde of bei^ 
ebcMt or tf Mkng or vo/timg^ aa a member of th^ Home 
of Commoiu. By Mct. 8, this act is provided not to extmd 
to any Inoorporated trading company^ or any company ' nov 

* eaufiUng or established, and oonsiaiiog of moce than ten 

* memb^^^ whefe the contract is for the general heboof of 
such incorporation or company. 

By the act 6th Will, and Mary,, c. 7, sect. 57, it is pro- 
vided, that no member of the House of Commons shall be 
ocmcenied in the farmii^, coUecttng^ or managing any smns 
granted by that act, mr to be hereafter granted by any other 
act, except CommissionerB of the Treasury, and Officers and 
Comtnissionere of the £^se or Customa, 8kc But these ex- 
cq)tiatis are modified by subsequent statutes^ Thus, by aot 
lltb and ISth Will. III. c. 8, sect 100, it is provided, that 
no member of the House of Conmoni shall be equable of 
being a commisaoner or farmer of. the Exciae^ on beer, ale, 
and other liquoxiB, or of being a commissbner for determining 
^peak for said daty^ or oontndling or auditing the aeoount 
of said duty, or of holding any o&se, place or employment 
touching the farmbg, colleeting, or managing the said duty 
of Excise. And, by sect Ifil, if any member of the House 
of Commona shell take any offios or employment toocloBg 
the fermitg, fee^of the saiddlity, or^ 8s&, he is deoUnd in- 
capable of nlMfig", nrfin^, cr msHmg^ as a. member of the 
House of Commons. And, by acts 18th and Idth WilL III. 

c. 10, sect. 89, it is proyided, that ^ no member of the House 
I 



0FFIC£RS OP CUSTOMS IHSQUALlt'IED. 971 

* of CcymiBODs' * shall be oaftftbk ^ bditg 21 taoaiA^Acitieit or 
' farmer of die co^oms/ or of holding any offioej plaoe or 
employment toaching the famdng, coUeeting &t ttanagfiq; 
the cu^oms. And by sect. 90 it i» provided^ that if any 
member of the Hoascf of Gommons shell tak^ any oflee^ pisee 
or employment touddng the farming, odkctii!^ or maiiagitig 
the customs, such person is declared incapable dtiUHn^^ vo§- 
mgj or actings a» a member of the House of Commoha^. 

' By the act 4Ut Geo. III. c 68, penonft holding a vitfieijr of offioos 
are declared incapable of being elected members of the House of Com- 
mons; and in the English books on Election Law (see Male on Elec- 
tions, and Hammond on Parliamentary Proceedings), these offices appear 
to be regarded a« amoanting to a dbquaHficatlon, in trliaieveir part of the 
United Kiilgdom of Great Britain and Ireland they are ezendied* The 
act is certainly entitled, * An Act for declaring what persons Mhatt be dit^ 
' abledfrom aUHng and voUnff m the House of Commane of the United Kingdom 

* of Great BrCtein and Ireland ; and also fbr cdrtying into effkl part of 
' the fburtli artlde of the Union of Great Srituht and Ireiand^ by prorid- 

* ing in what cases peiMns holding offices or ploeet of profit under tlie 

* Crown a£Irelandj shall be incapable of being Members of the House of 
*• Commons of the Parliament of the said United Kingdom ;' but on look- 
ing at the act itself^ it bears, that no person who shall hold ' any of the 

* offices,, employments or {daces of profit herein after menttaned^ hi or fbr Am 

* pmr^qf^ UnUed Jityfaw mUad /Miimi» shall be oapaMe, Ac. Dhilto « My/ 
and then fiiUows the list of the offices. These words oMunly import that 
the offices shall be situated in Ireland; and, although there are exceptions of 
some offices which no longer exist, separately at least, in Ireland, yet most 
of them appnr to have tfaer^ existed at the date of theodt Peilidps, how- 
ever, the aot may hafie been dSffeMniiy interpt«ti*d in pnaiiso^ The of- 
fiaes mentionad are those of Cominiaflioners of CastonU} ^B^ociae^ .or Stampe; 
persons concerned in fiurming, collecting or managing dutiee granted to 
the King ; except Commissioners of the Treasury, and their Secretary ; 
agents fbr regiments ; Commissioners for determining appeals concerning 
Custom, Excise, or Stamps, or fbr controlling or auditing the accounts of 
tboM dtttles, exespt the ▲tiditap.Geneni of the EXcbaquAf ; d^utiea or 
derka in the offlees of the Lord Hi^ Treasnier, or Commissioilen of the 
Treasury, except the Secretary of the Treasury, or of the Auditor of Re- 
ceipt, or Tellers, or Chancellor of £xehequer> except tha Seetvtaiy of the 
Chancellor of the Exchequer, or of the Commissionera of Stamps or Ap- 
peals % and some otheM. 



87S WHO MAY BE ELECTED FOE A COUKTY. 

It will be observed, that there is a differenoe between the 
phraseology of the two last mentioned acts of William, and 
that of nearly all the preceding statutes. The acts of Wil- 
liam only declare that no member shall accept the oflSces, and 
that, if he does, he shall not sii or vote ; whilst the othtf acta 
state the oflioes as disqualificadons,/}iom being deckd, ' This 
difference gave rise to a question in the House of Commons, 
whether a person, who, at the time of election, had an office 
disqualifying by act 12th and 18th Will. III., but who had 
surrendered it before taking his seat in the House, was enti- 
tled to take his seat, and the House resolved that he had a 
right to take his seat ^. 

But, in a subsequent case, where a person held an office in 
the customs, and no surrender had taken place at the time of 
election, the House resolved, * That, having an office, &c. a$ 
* the time of election, he is incapable of claiming to sit for the 
^ said burgh V Sir John Simeon, in his Treatise on the Elec- 
tion Laws^, appears to approve of the former of these deci- 
sions. It may be observed, that, if the act 4l8t Geo. III. 
c. 52, is held to apply to offices in aU parts of the United 
Kingdom % this question is superseded, because the offices 
ma:itioned in the acts of William are included in that of 
Geo. III., under the sanction that the holders of than shall 
not be elected. 

In a committee of the House of Conmions, it was objected, 
under the act 6th Anne, c. 7, to the electiuQ of a gentleman, 
in the year 1T74, for a district of buxghs, that he held the 
office of Clerk of the Pipe in Exchequer, which, it was in- 
sisted, was an office created or erected since the year 1705. 
It was answered, that the office was similar to that of Dicta^> 
tor of the Bolls, long known in the Exchequer of Scotland, 
before it was new-modelled after the Union ; that, even if it 

1 CaaeofSirEicfaardAllin; Douglas, L p. 148. 

* Cue of Mr Ongley; Douglas, 1 p. 142. 

'P. 41. « See note^ p. 97K 



IRISH P££RS MAY BE ELECTED. 273 

were to be viewed as a new office, it was created, not by the 
Crown, but by Parliament ; and that, in practice, this officer 
had been returned, and sat in Parliament. The committee 
resolved, that the office did not constitute a disqualification ^ 
The House of Commons, in the year 1779) found that 
this statute did not apply to the commissioners appointed to 
treat with the Americans ; and in the same year, a motion to 
incapacitate the Secretary of State for America was thrown 
out *. 

Irish Peers are, by the fourth article of Union with Ire- 
land, capable of election to represent a county or burgh of 
Great Britain, under certain provisions. By that article, it 
is declared, ^ That any person holding any peerage of Ire- 
^ land now subsisting, or hereafter to be created, shall not 
^ thereby be disqualified frran being elected to serve if he 
^ shall so think fit, or from serving or continuing to serve, if 
^ he shall so think fit, for any county, dty, or borough of 

< Great Britain, in the House of Conunons of the United 
^ Kingdom, unless he shall have been previously elected as 
' above, to sit in the House of Lords of the United Eing- 
^ dom ; but that so long as such peer of Ireland shall so* coiv- 
' tinue to be a member of the House of Commons, he shall 

< not be entitled to the privilege of peerage, nor be capable of 
^ being elected to serve as a peer on the part of Ireland, or of 
' voting at any such election; and that he shall be liable to 
^ be sued, indicted, proceeded against, and tried as a com* 
' moner, for any offence with which he may be charged'*' 

» Wight, p. 297. ' lb, p. 299. 

' 39th and 40tb Geo. HI. c. 67- 



( 274 ) 



CHAPTER V. 

OF THE APPOiKTMBMT OF, AKD IfOBB OF FliOCBDUES ATj 
THS VBETIN6 FO& SLSGTINO TH£ EBFBE8SKTAT1VS OF A 
GO0MTY. 

When a new Pariiameiit has been sunmoned by reyal 
proclamaation, the TuorA Cfaanodlor immediately afkor sendb 
his Wutttnt to the Ckrk of the GrtmB, to issue vnis to the 
Sheiiffs of the several counties, for the dection of icpresenta- 
tives of these counties '. When there is no Ghaned^or, the 
Lord Keeper, or Conunissioners, of the Gi«at Seal tac the 
time, gfant the warrant. 

When a vacancy takes place during the sSfttii^ of Pariifr- 
ment, the warrant is given by the Speaker of the House of 
Commons, by order ct the House. During avicees Ibr mare 
thtta twetfty days, whether by prorogation or adyoummMit, 
the Speaker is tathbmed, by 16th Geo. III. a 41, to grant 
warrants to issue writs for supplying vacancies' whiefa hqffen 
by death during such recess^ provided the deadis be tardSed 
to him by a writing under the baftds ct two mettbttrs of the 
House, and ttcf&:e*6f such CNfirdfieate be insMed iff '^ Lon. 
don Gazette fourteen days bief(M« the wamat be issued ; and 
provided lihe return 6f the writ, by viytaeof wfaadi the de- 
ceased member was elected, has been brou^t into the ofloe 
of the Clerk of the Crown fifteen days at least before the end 
of the session of Parliament, immedistely preceding the death 
of such member. When the vacancy, however, takes place, 
in consequence of a member accepting an office during a re- 
cess, no new dection can be made till the next meeting of 

* For the fbnn of the writ, see AppendIX) No. 9. 



NOTICES OF ELECTION MEETING. 275 

Parliannfint^ when the Speaker grants warrant to the Clerk of 
the Oxown to issue a new writ \ 

Sherifis have the privil^e of appointing the day of dec- 
tktt; but, by the act IfiBl, c. 21, it is provided, that the 
<fitt nniai be at least twelve days before the meeting of 
Parliainait With respect to the filHng up a vacancy occur* 
nog during the sitting of Parliament, it is generally under- 
stood that the election in such a case must be within forty 
days from the date of the writ, although th^e is no enact- 
ment on the subject K 

The act 1081 also directs, that the sheriff shall make 
publication of the diet of election at the head burgh of the 
shire upon a market*day, and at each parish-churdi on Sun- 
day immediately thereafter ^ If there was no £vine service 
at.tiie church on that day, the execution of the officer ought 
to bear that fact, and that a copy of the precept for intima- 
tioii issued by the sheriff was affixed to the churdi*door. 

By the act 88d Geo. III. c. 64, it is provided, that all 
notioeB to be given of the time and place of any election, diaU 
be puUidy ^ given at the usual places, wltUn the hours of 

< eight of the dock in the forenoon, and four of the dock in 

< tlie afternoon^ fiom the 9Sth day of October to the SStii 
^ of Maidi indosive, and within the hours of dght of the 

< dock in the forenoon, and six of the dock in tiie afternoon^ 

< from the 5Ufth day of March to the SStii day of October in^ 
^ elusive, and not otherwise.^ 

By the act 86tb Geo. III. c. 65> it is provided, that the 
sheriff 4lepute, or substitute, shdl, within six free days after 
reosrring the writ^ direct the notices required by law to be 
gifien aato the time aBdjdaceitf ekction; and that the day 
of election shall not be sooner than six days, nor later than 

* wifliift) p. ads. > Wi^t, p. M4. 

' For the forms of the sheriff's precept for intimation, and of the exe« 
cution of thttprecepl,. tee Appeadiz, Nos. la & IL 

s2 



276 PROCEDURE AT ELECTION MEETING. 

fifteen, aflter the day of publicaticm at the churdi-doors; aS 
under the penalty of L. 500 sterling for every contravention 
of these provisions. 

The same act declares, that if the principal or high she- 
riff, or steward, or any person other than the dieriff, or 
steward depute,^ or substitute, shall < presume in any respect 
^ to interfere, or take upon himself the execution of writs of 
^ election,'* he shall forfeit L. 1000 sterling for every offence; 
and, on ccmviction in any suit, shall be incapable of ever 
bearing any office of trust under the King. 

By the same act it is provided, that, with respect to Ork- 
ney and Zetland, publication at the town of Kirkwall, and 
at the twelve parish churches in the Island of Pomona, or 
the mainland of Orkney, shall be sufficient. 

At the meeting of freeholders, hdd between mid^iay ai)d 
two afternoon of the day ^pointed for election, the dieriff 
produces and reads the writ, and produces executions cvf the 
different notices. Should these executions be infonnal, 
Spottiswood and Wight are of opinion that a new precept 
must be issued by the sheriff^; but, since their time, the 
act S6th Geo. III. has required that the notices shall be is- 
sued by the sheriff* teOkm ms doffs of receiving the writ ; 
and the question therefore arises, Whether, after having 
oompHed with this r^ulation, if it has turned out that the 
executions are defective, a new precept, ordoring tteAk wk 
tices, can be issued aflter the lapse of the six days? The 
acts 1681, and 12th Anne, c. 6, do not prescribe any time 
within which, after receiving the writ, the sherffi must ap* 
point the notices to be made ; and the writs merefy <«der, 
generally, that ^ immediate, post debitam notitiam fnius inde 
' dandam,^ he shall cause a member to be elected. The ob» 
ject of the act S5th Geo. III. seems merely to have been to 
take away this latitude, and to order the sheriff to direct the 



1 Spottiswood, p. 10, first edition; Wight, p. 306. 



PROCEDURE AT ELECTION MEETING. 277 

notices to be given within a limited time ; and if the sheriff 
observes this rule, he thus far complies with the act ; and it 
does noc seem to have been the intention of the legislature 
to prescribe, that, in case the evidence of the after step^ of 
pubUaUion should be informal, no new order for notice could 
be issued, if six free days are still allowed to elapse between 
the publication and the day of election. But it must be con- 
fessed, that the letter of the statute is against any new order 
for intimation, and, if the question were to arise, it woidd be 
attended with some difficulty ^. Should it so happen, that six 
days have not elapsed between the publication of the new 
precept and the day of election, it seems quite clear that the 
election must be held as void. 

The act Sd Geo. II. c. 24, relating to bribery, must next 
be read, in obedience to the directions of that act The 88th 
section of 16th Geo. II. dispensing with the preceding act, 
in so far as it prescribes an oath to be taken by the sheriff, 
or other returning officer, is also read. 

The sheriff-cleric then produces the book in which the roll 
of freeholders and the minutes of their proceedings are in- 
serted, together with copies of the oaths of allegiance, abjura- 
tion and assurance, and of the trustoath. 

The commissioner last elected, if present, now takes the 
chair, and qualifies, by 'taking the oath of all^iance, and 
signing the assurance, and by taking the oath of atijuration, 
if required. 

The commissioner last elected, or, in his absence, the she- 
riff-derk, administers the oaths of allegiance and assurance to 
the freeholders; and likewise the oath of abjuration, if re- 
quired ; and then calls the roll for the election of preses and 
clerk. The rule, as to the casting vote, in case of equality of 
voices in electing these officers, is the same with that which 

» The Wigton case, Douglas Election Cases, u. p. 181, and Wight, p. 375, 
in some degree illustrates this question. 



2T8 PROCEDUEE AT JplLECTION MEETING. 

has beea alMidy explained )*rith respect to Miohaelmas meet- 
ings »• 

Before the ad 87th Geo. III. c. 168, it was not eompeteot 
to put the oath of posseseioii to any freeholder befiore the 
idection of preses and derk, ather at an eleetioa cr at a Mi- 
chaehaas meeting. By that aet^ however, the law is akered 
with reqpect to an election meeting; for it is provided, ^Tbat 
' if any person, at an dection for a member to sorve in Barlia- 
( ment for any oouaty, shall offer to vote in the decdkm df 
* preses and derk, it shall and may be lawful for my bee- 
< holder to put the oath ot trust and poesesnon to him before 
^ giving his vote, in the same manner as is now practised, af- 
^ ter the preses and clerk are chosen.^ 

By the act l6th Geo. II. c. 11, sect 13, it is declared, 
that, at every election-meeting, if the commissioner last dect- 
ed, or, in his absence, the sheriff-clerk, shall, in the choice of 
preses or clerk, receive the vote of any one who does not stand 
on the roll, he shall for every offence forfdt L. 800 steiiing 
to every candidate for the office of preses wcla?k x^sfipective- 
ly, for whom such person shall not have j^ven his vote. A 
like penalty is incurred for not calling . or refining the vole 
of any person on the roll, to be reoovered by that person, or 
his ei^ecutors. These penalties are to be vcoovered bjr sum- 
mary process before the Ck>urt of Sesoon*. 

Xn a case v/hete the ocNumissioner last efeded refused to 
recdve the vote of a person who t^dered it, being convinced, 
from a variety of circumstance^ that the name on the idl was 
pot applicable to the individual who daimed the vote, but to 
his father, who had borne the same nam^ the Ckmitof fies- 
^on refused to impose^ the statutory penalty'. Inaootb^r 
instance, where the valuation of a person on the rcrfl had beto 

> See p. 22. > Sect. 43. 

^ Sir James Stewart's election, 1744 ; Wight, p. 310. 



PROCEDURE AT ELECTION MEETING. 279 

reduced, so as to leave him lege than the legal amount, but no 
order had been pronounced striking him off the roll, the oom- 
ndssioiier last elected, on ibis frediolder refusing to take the 
tnist-oatb, with the blank filled up with the names and yalua- 
tkiB of the lands as originally claimed on, struck his name 
off an extract of the roll, the principal loU having been 
taken tram him, and then proceeded to call the names of the 
other freeholders, in the choice of preses and clerk. In these 
orcumstanoes the Court found the commissioner liable in one 
poialty (^ L. 800 ^ 

Every freeholder who sq|)arates from the majority, and 
sets up a person as preses or clerk, other than him chosen by' 
die majority, incurs a penalty of L. A) to the candidate 
chosen by the majority ; and any one who presumes to act as 
preses or clerk, when he has not been chosen by the miyority, 
forfeits for every offence L. 900, to the candidate chosen by 
the majority ^ 

The derk chosen takes the oath of allegiance, and signs 
the assurance. The act 16th Geo. II. c. 11^, also requires 
that he shall take and subscribe an oath relative to bribery ^ 

• On the demand of either of the candidates, or of any two 
of the flFeeholders, every person, before voting for the mem- 

> Frazer v. Gordon, 19th November 1768 ; Wi^t, p* 311. 

* 16th Oeo. II. c. 11, sect 14. 
'Sects?. 

^ The fidlowing is the tenor of thU oath :— ^ I A. B. do solenmly swear, 
^ that I have not, directly or indirectly, by way of loan, or other device 

* whatsoever, received any sums or sum of money, office, place, or employ- 

* menl, gratuity or reward, or any bond, bill, or note, or any promise of 
' any sum or sums of money, office, place, employment, or gratuity what- 

* soever, by myself or any other, to my use or benefit, or advantage, to 

* make any return at the present election of a member to serve in Parlia- 
' ment ; and that I will return lo the sheriff, or steward, the person elect* 
' ed by the nuyority of the freeholders, upon the roll made up at this elec- 
' tion, and who shall be present and vote at this meeting. So help me 

God.* 



280 PROCEDUEE AT ELECTION MEETING. 

ber, musty by 9d Geo. II. c. JM, sect. 1. take an oath relative 
to bribery ^ 

When the meeting has been constituted, the freeholders 
proceed to adjust the roll in the same manner as at a Michael- 
mas meeUng. It is not, however, necessary at an elecdon 
meeting, as it is at a Michaelmas head court, for a person 
claiming enrolment to lodge previously any claim ; neither is 
it necessary that ol^ections to one already enrolled should be 
previously lodged^ in order to entitle the freeholders to strike 
him ofiP the roll. It is, however, equally necessary at an elec- 
tion meeting, as at a Michaelmas head court, that the claim- 
ant should produce his charter and sasine. In one case a 
claimant had produced, at an election meetings the letour ai 
his special service, as heir of his grandfather, and his saane 
{bllowing thereon, but had omitted to produce the precept 
from Chancery, which was the immediate warrant of his in- 
feflment He then attempted to remedy thb defect, by pro- 
duction in the Court of Sesdon, of an extract of the precept, 
and argued, that all that was necessary at an election meet* 
ing was to make every production called for by the freehold- 
ers. The Court, however, found that he had no right to be 
enrolled'. 

When a new roll has been made up, it is called by the 
preses, and the votes are received towards the election of a re- 
presentative. 

In the event of an equality of votes, in this or any other 
question subsequent to the election of the preses and clerk, 

1 The following is the tenor of this oath :— « I A. B. do swesr (or, being 
'one of the people called Quakers, I A. B. do solemnly affirm), I hare not 

* received, or had by myself^ or any person whatsoever in trust for me, or 
*• for my use and benefit, directly or indirectly, any sum or sums of mo- 
*• ney, office, place, or employment, gift, or reward, or any promise or ae- 

* curit^ for any money, office, employment, or gift, in order to give my 

* vote at this election, and that I have not before been polled at tills elec- 
( tion.* 

' Cranstoun r. Cunningham, 4th March 1613; Fac. 



PROCEDURE AT ELECTION MEETING. 281 

the former of these cheers has the casting vote, besides his 
own vote as a freeholder ^. 

If the preses shall, in the election of the member, receive 
the vote of any one not on the roll, he shall, for every such 
oAence, fixfeit L. 900» to every candidate for whom such per- 
son shall not have given his vote^ to be recovered by him, or 
his executors, by summary process before the Court of Ses- 
«oD^ ; and the preses incurs the like penalty tor every of- 
fence^ if he shall not call for or refuse the vote of any person 
whose name is on the roll, such person, or his executors, beii^ 
entitled to recover such penalty by the like process^. 

If the person elected representative has not been present at 
the dection, he must, by 16th Greo. II. c. 11, sect. 10, be- 
fore he takes his seat in Parliament, take the trust^iath, be- 
fore the Lord-Steward of his Majesty'^s household, or any 
person or persons authorised by him for that effect; and if 
he fttls to do so his election is void. 

1 16th Geo. II. c. 11, sect 13. * Ibid. 

* Sect 43. * Sect. 13. 



( sisa ) 



y 



CHAPTER VL 



OF KBTUEKS BY CLBRKB AMD 4HKE1FF8, 



By the act 7ch Geo. II. c. 16, sect. 1, it is provided, that 
if the dedc of any meetaog of fineeholdera dudl wilfyiy rata 
to the aheiiff ^aoy penmi odier than him duly elected, or if 
any parson^ pretending to be derk, although not duly dect- 
ed, ahall presume to act as derk, and wilfully to letum any 
person not duly elected member, he shall for every audi of- 
fence finfdt L.£00 to the candidate who has been duly 
dected. 

By the act 16th Gea 11. c. 11, sect 16, it is dedaied, that 
the clerk of the meeting shaU return the name of the person 
elected to the sheriff of the county ; and that if he shall re* 
fuse, or neglect to do so, or shall return auy other person 
than him elected by the majority, he shall for eveiy such of- 
fence forfdt the sum of L. 500 to the candidate chosen by 
the majority. 

Under the above proviaons of the act 7th Greo. 11. c. 16, 
the following case occurred: — ^MuUud protests had been 
taken by the opposing parties at an election meeting, against 
votes in the opposite interest ; and the commisdoner last 
dected having called the roll for the election of preses and 
derk, without regard to the protests of dther party, the two 
parties had separated, and elected each a member. In these 
circumstances, the derk of the minority was, by a judgment 
of the House of Lords, reversing a ccmtrary decision of the 
Ck>urt of Session, found liable in the statutory pendty for 
making a false return to the sheriff, although he maintdned 
that he concdved the member whom he had returned to have 



OF RETURNS. fiSS 

E^ery flheriff, upon production to Um of a copy <^ the 
freebddfirs^ roll, aiade up at the last Micfaaebnas <»* election 
naoliagv eactiaded and i^ned by the iheriffiderk ; and upon 
pnodiietioa of 'tibe originid miniiles of the election <yf preses 
and elerk, signed by the commifiMner last elected, win his 
absence by the sheriffderk, must, by the act 16th Geo. II. 
a lly aect 17, annex to the writ the return made by the 
dark .elected by the majority ; and if he n^ect or refuse to 
do 6o, or annex the return by any other person pretending to 
be derk, he forfeits for every such offence L.500, to the per- 
son elected by the mtyority and returned by the clerk. The 
return is in the shape of an indenture between the dieriff and 
the clerk'. 

As the act has^ provided, that, faeudes the mioutes of the 
electmi of preses and clerk, a copy ^ the roll of freeholders 
shall be produced to the sheriff, it was ai^ed, in a question 
which arose, whether the statutory penalty had been incurred 
by the sheriff, that it was in the view of the legislature to be- 
stow ixpaa him some discretion in detenmning whether the 
dark nrho makes the return to him has been truly dected by 
the minority of the freeholders contained in that roll. In the 
case alluded to, the commisaioner last elected took upon him- 
self to strike off an extract of the roll, a freehdder whose var> 
luation had been reduced, but against whom no order of exdu- 
sion from the roll had been obt^ned. He then, after calling the 
roll irom that extract,— -giving the casting vote himsdf in the 
etection -of preses and clerk,— and signing the minutes of their 
elaotioo, was elected meiliber by his own party. The other party 
separated and called the roll last made up from the sheriff- 
books ; the sheriff-clerk signed the minutes of their election of 

* Hume Campbell. RlecUon, 1741 ; Wight, p. 319 $ and Oraigie and 
Stewart's Appeal Cases, vol i. p. 34S. 
^ See App. No. 12. 



S8i OF RETURNS. 

jneaes and derk; and another person was elected member. 
The clerks of both parties made returns to the sheriff, but with 
this diffefenoe, that the minutes produced by the former par- 
ty, of an eleotion of preses and derk, were agned by the 
commiflaoner last dected, whilst those produced by the oidief 
party were only signed by their clerk, as sheriff-clerk, and by 
the freeholders in that interest The sheriff annexed to the 
writ the retuhi of the latter party ; and, in answer to a pro- 
test taken by the other candidate, asagned as his reason, that 
having been present at the dection, he made the return ac 
cording to his oonsdence, and what he judged to be law. 
The Court of Sessbn absolved him from the statutory pe- 
nalty^. 

It is clear, however, that, with respect to that part of the 
proceedings of the meeting, which regards the actual elec- 
tion of the member, the sheriff has no discredon. The mi- 
nutes of that election are not required to be laid before Um. 
He acts merely ministerially, and must annex the person re- 
turned by the derk, whether duly or unduly elected. 

In a case from Berwidcshire already mentioned ', where the 
sheriff took upon himsdf to annex both the return made by 
the derk chosen by the majority, and that of the clerk 
chosen by the minority, the House of Commons resolved thai 
the sheriff had acted arbitrarily and illegally, and ordered 
him to be taken into the custody of the seijeant-at-arms '. 

1 Gordon o. Rose, 19th November 1768 ; Wight, p. Si2. 

* Hume Campbell. Election, 1741. 

' Wight, p, 321. In this case, however, both the Court of Session and 
the House of Lords assoilsied the sheriff ftom an action fer penalties^ un- 
der 7th Geo. II. c ie» sect 8; Craigie and 8tewart*a Appeal Csses, L 
p. 348. The argument which proved successful appears to have been that 
the action was given hy the act onlj to the penon not returned, whereas 
here the person suing for the penalties liad been retumed as well as bis 
opponent The act 16th Geo. II. c 11. sect 17$ under which such a 
question would now be tried, is differently expressed ; and it would ap- 
pear that a sheriff would incur the penalty, by making a double retum- 



OF RBTU&Nfl. 285 

By a subsequent act, the 25th Geo. III. c 84 ^ it is pro- 
Tided, that any sherifP^^or returning officer, who shall wilfully 
delaj, n^lect, or refuse to return any person, for a dty or 
burgh, who ought to be returned, such person, if it diafl be 
ibuiid fay the Committee of the House of Commcms that he 
ou^t to have been returned,, may recover, in the Court of 
ScBMon, from the sheriff, or other officer, double the damages 
he may sustain by such conduct ; provided ' Ule action be 
brougjit within a year from the alleged wnmg^. or within six 
months fimn the conclusion of the proceedings in the House 
of Commma. 

By the act 6th Anne, a 6, sect 5, it is provided, that the 
sheriff shall return the writ into ' the court out of which the 
writ issued,^ which is the Crown-Office in Chanoeiy. 

^ Sect. 14. > Sect ia« 



M 



< 3m ) 



VII. 



or MtlBBftT >. 

t 

By tbe El^lirii BMtile 7fh WiiHam III. e. 4^ it was provide 
^eiyThtX fio peMm or peraoii8>hei«rfkertobe ekoted toM^ 
in Parliament for aay o^inity^ ci^^ towii) borough, port^ or 
place, within the kingdom of England, dominioD of Walei, 
or town of Berwick-apon^Tweed, after the teste of the writ 
of flymmons to Parliaiaent, or after the tesle or die issuing 
out, or ordering of the writ or writs of Section upon the call- 
ing or summoning of any Parliament hereafter, or after any 
such place becomes vacant hereafter in the time of this pre- 
sent, or any other Parliament, shall or do hereafter, by him- 
self or themaelves, or by any other ways or means on his or 
their behalf, or at his or their charge, before his <Hr their elec- 
tion to serve inParliament,for any county,city, town, borough, 
port, or place within {as above)^ directly or indirectly giv^ 
present, or allow, to any person or persons, having voice or 
vote in such election, any money, meat, drink, entertainment 
or provision, or make any present, gift, reward, or enter- 
tainment, or shall at any time hereafter make any promise, 
agreement, obligatbn, or engagement, to give or allow any 
money, meat, drink, provision, present, reward, or enter- 
tainment, to ot for any such person or persons in particular, 
or to any such county, city, town, borough, port or jdace, 
in general, or to or for the use, advantage, benefit, emphiy- 

1 In this chapter it will be conveiilent to anticipate a little, and to in- 
clude in it what relates to bribery, as well in borough elections as in ooun* 
tjT elections; with the exception of bribery in the election of magistrates, 
which shall be reserved till that kind of election is treated of. 



OF BRIBERY. 287 

^ nwDt, profit, or prefieniieiit>.<^ any such person or persons, 

* plaee <Nr pkces^ in order to be eleeted, or for being elected, 

* to serve in Pariittnent for such oouaty, city, boioiig^ town, 
^ or pbtoe.^ And sectbn S, < That every pe^on^soad persons 

* so giving, preeenting, or allovring, mtiaagj pnNBMing^«reD. 

* gagiiq;, doii^, acting, ot piooeedii^, AaH be^ and ace 
*• hereby declared and enacted to be, disabled and incapno- 
^ iaiad, apon such election, to serye in PariiaBieBt« Ibr such 

* comity, laty, town, borangb, port, er phee;. and thai soch 
' p c i ' s o n or nenona shall .be deemed and tdien* sndaieheiabv 
^ dedaied and enacted to be deemed and taken, no members 
' in PariianieBt, and shall not act, sit, or have any vote or 
' piaee in Parliament^ but diall be, and are hereby declared 
^ and pnected to be, to all intents, eonstruolions, and pur- 
^ poaes, as if they had been never returned or deoted aoem. 
^ ben for the pailiement^ 

This stitate, as having been passed before the UnioB^ was 
nf coarse not apfdicable to Scotland, at the tame of ite enaet- 
naenC Bat, l^ 6th Anne, c. 7, sect 80, it was declared, 

* Thtu every person dieaided to be elected, or to nt'oii vote 
^ in the Hoase of Commons, c£ any Parliamtnt cf England, 

* sbdl bediariiled to be elected, or to at or vote in the Rouse 
< of Commons of any Pwliaraent of Great Brilsin.^ It fol- 
kiws, d»t die disijualiioalion, by i^mag mertey or enter- 
tahmBeot, introduced by the statute* of WiDisni^ must- be ap- 
phcaUe to Sootdsh as wdl as to Ei^^bh members. 

The increase of tins vioeof btibery, nstwithstaading the 
net cf WilKaftn, and the gross cornqAionwlndiilisdptevdled 
ne Be««iy in Ywkshife, in the year 1707 ^ caused the le<- 
gisktise to intnpoee^ by a new statute, wMehv byite tttsas^ 
was mede apfdicaUe to Soodand. 

This act, the Sd Geo. II. c. a«^ provides) thatif any peit- 
aon shall * ask, receive or take any moneys or odwr reward, 

^ Saiem on Elections, p. 194, 3d efitioit. * Sect 7* 

4 



888 



OF BEIBERY. 



bgr way of ffit, loan, or other device, or agree or contract 
(at any monqr, gift, office, emjdojrment, or other rewiard 
iribataoever, to give bis vote, or to refuse or forbear to give 
his vote in any such election ; or if any person by himself!, 
or any parson employed by him, doth or shall, by any gift 
or reward, or by any piomise, agreement, or security, for 
any gift or reward, corrupt or procure any parson or per- 
sons, to give his or thefar vote or votes, or to fcnrbear to give 
his or their vote (Mr votes in any such election, such person, 
so offending in any of the cases aforesaid, dull, for every 
sudi offience, forfeit the sum of five hundred pounds, of 
lawful money of Great Britain, to be recovered as before 
directed, together with full costs of suit ; and every person 
offienifing in any of the cases aforesaid, from and after judg^:. 
ment obtained against him in any such action of debt, bill, 
plaint, or informati<m, or summary action or prosecutioir, 
or being any odierwise lawfully convicted thereof, shall for 
ever be disaUed to vote in any election of any member or 
members to Parliainent, and also shall for ever be disidiled 
to hold, exercise, or enjoy any office or franchise to which 
he and they then shall, or at any time afterwards may be 
entitled, as a member of any dty, borough, town oorprante, 
or cinque port, as if such person was naturally dead.^ 
This act also prescribes an oath to be taken bjr every elec« 
tor before votingS if demanded by either of the candidates, 
or any two of the electors. 

The penalties inflicted by this statute may be recovered 
eilher l^ a summary action or complaint in the Court of Sea- 
sion, mr by a prosecution in the Court of Justiciaiy, and the 
pKOceedings must be cmducted according to the usual forms 
of that Court in which they are instituted, so that if they are 
brought in the Court of Session, the accused will noi^be en- 
titled to insbt that a list of witnesses and of writiif^s to be 



^ See tbU osth, p. 2S0. 



OF BEIBEEV. 889 

imd 9fgmaat bim, AmM have betn exhibited with the com- 
pUatK Tbe time for oommeiieiiig pioeecutioD is Kmiled to 
two yean firom the incurring of the penalty ^ andtheproceiB 
■MR be served on the aoeond within that period'. 

By the act 16th Geo. II. c. 11, seet 88^ it is declared, 
that the eleoton of cnaamiasioncfs or del^stes, for any royal 
borough in Scotknd, for diooaiBg burgesMs to ParliameBt, 
mey withb the intent of the act Jbi Geo. II, to be oooBideied 
aa dectots of the member to serve in Parliament, and are 
liaUe to the provisions and fiwfintuies of that act. The act 
1^ Geob II. however, stthstitutes another oath S to be talsen 
by every voter at the election of a coaMnisaoner for choodng 
a member, if demanded by any one Sector, instead of the 
oath of 9d Geo. II. An oath^ is also piescrttied for the 
cieriL of each borough, at ekotion of commissionerB for 
ehnowing borgesses ; and another oaA ^ for the derk of the 
IHviailmg borough) at the meeting of the commissioners for 
chonwng a bmgeas. 

The statute Sd Gea II. applies only to the case where 
the asionay €X other reward is given to the voter, and not to 
the case where it is given to a thhrd party, to induce him to 
procure the return erf any member. With the view of meet- 
ing this latter case, theaet 40th Geo. III. c. 118» was passed, 
by the tint section of wluohit was enacted, that * If any per- 
son or persons riiall, fixxn and after the passing ^ this act, 
cither by himself, hersdf, or themselves, or by any other 
person or pcnons, for or on his, her, or their behalf^ give, 
or cause to be given, directly or indirectly, or promise or 
^gree to give any sum of money, gift, or reward, to any 

I Inrin bu Adan, July 1708; Wi^t. pu 2701. 

* Sect 11. 3 9th Geo. II. c. 38. 

* See tMs oath ifi/Va, under Election of Delegates 
^ See this osth infm^ under Election of Delegates. 

< See tins osth ^i^roy under the Eleotion of the Kepreeentatiye of s Bo- 



ftgO OF BUSfiRY. 

pcnon or fmtatmM^ upm anjcsgi^ctttiaBly oootnct^ortgMN 
aamU that gudi pwmi or peeMOs to wImhii, to whoBe urn, 

by himsdft benelf, or tinBamAfeB^ or by wiy other peraon 
or peraoDS whalaoew^ at hia, her, or their aolkitatkn, xe- 
^piesty oroonrnand, procure, or andaavour to proouxe, the 
•etum of anypenoa to aenrein PaiUament, foraay oouotgFf^ 
ataarartcy, city^ town, honmi^ okique port, or placet ewy 
peraoQ ao hamig givca, or proaaiaed to give, if not returned 
himaelf to Pariiameiit Soft aucfa oounty, atewaitry, cky, towB» 
borauf^, cinqtte port, or phMae, ahall for evary aueh gift c€ 
pnaniae, iotteil the aum of one thouaand pounda^ to be ra^ 
covered in audi nMamor aa is herdnafto' provided^ with re^ 

^ apect to the aun of five hundred pcuada, and every aueh 
peraon ao natymed, and ao having given, or ae having pr». 
miaad to givc^ or knoviog of and oonaontiBg to auch gifta 
or praasiaaa, upon any auch eqgagament, cnntiaci, or i^jrea* 

^ment, ahall be, and ia hereby declared and enacted to bedia> 
aHfld and incaoacitated to aerve in that ParliamenL far 
aurii county^ alewartry, city, town, borough cinque poctf 
or place, and that audi peraon ahall lie deemed and takaii« 
^ ly^ ia hereby declared imm ^ enacted to be j^wjw fc p d and tahmi 
to be no member of Parliament, and enacted to be^ to all 
itttentab ooBatruction8,andpiyirpoaeB»«8if behadnoner bean 
returned or elected a member in Parliament ; ttid any per- 
aon or peraona who ahall receive or accept of, by himadf, 
heraelf, or tbemadvea, or by any other person or poaonaki 

^ truat for, or to the uae cr on the behalf of hiin, bar, or 
them, any aueh aum of money» gift, or rawaufd^ or any auab 
promiae upon any auch engagement, contract, or i^iraenient, 
shall forfeit to hia Majesty the value and amount of audh 
aum of money, gift, or reward, over and above the aum of 
five hundred pounds, which said aum of five buodrad 
pounds he, ahe, or they, ahall forfeit to any peraon who 
^hall sue for the aame; and if the offence be oommittad in 



OF BRIBEBY. 991 

■ 

^ fleodttid) then to be leoovered with lUl <Mt9 of suit fay 
^ iwiiwiMii J acticm or oomplMit before die Court of Sesekni, 

* or by proeecution before the Court of Justiciary diere.^ 

It 18) however, provided, that nothing in this act shall be 
held to apply to numey given finr biw expenses K 

The dause quoted above applies to the case of ^ mon^, 
*' gi^ or reward,^ being employed for the purpose of bribeiy. 
A subsequent clause' enacts nearly the same provisions, with 
respect to the case where ^ any office, place, or emolument,^ is 
the inducement enqployed. The {fKndpal difference seems 
to be, that (he penalty of L. lOOOy imposed by the first dause, 
10 not repeated here; although the same provision is intro- 
duced relative to the incapadty to serve in Parliament, if the 
uscTof this kind of bribery is returned. A penalty of L. 1000 
ia» however, ineuned by ^ any person hdding any office uni% 
^ der his libjesfy, who-shaH give sudi onoe, appeintment, or 

* plaoe,^ upon any agreement (hat the receiver diall procure 
die return of any individual. 

Fioeees for any penalty under this act must be Qommeaeed 
and served witUn two years after the conmission of the c€- 



Independently of statute, bribery at elections, whether 

of memhera of Parliament, or of magistiates ot dd^gates of 

bomigbs, is a crime by the common law of Soodand, and 

pimidiable by tiie Court of Justiciary, unless, perhsps, it 

dionld now be held that the statutes, in so far as they teach, 

have superseded the common law on the subject. An objec- 

tioD thai such praetioes were not criminal at conmoa bw^ 

nnde to an indfetment for alleged bv%ery,by a candidale fiir 

Ae re p re s en tation in Parliament of a borough, at the dec- 

tion of magistrates for that borough, to which case, it wiU be 

iskmexrei, the statutes do not apply, was repelled by a unani* 

moon jwjgment of the Court of Justiciary '. 

< Sect. % * Sect S. 

s Mwnitoili, &c «. Dempster, Ist August 1768; Macliurin*8 Criminsl 
No. 79* The iadictiiieiit was, however, quashed, hecause in some parts 

t2 



202 OF BRIBERY. 

• 

It U at common law that elecdons of mi^Btrates have ib 
various instances been set aside by the Court of Sessioay be- 
cause such eleetiODs are not within the words of the statutes ; 
and it was thought expedient to declare, by 16th Geo. II. 
the applicability of the act Sd Geo. II. even to the case of 
the dection of ddegates, which is one step nearer the dection 
of the member, than the choice of magistrates is^ In one 

the cbai^ge of actual bribery was too vague^ and in others the attempts to 
bribe were not alleged to hare^been carried into effect, so that the private 
proaecotor, at whose instance the prosecution was brought, with concnr- 
renoe of the Lord Advocate, was hdd to have nalnterest toi&ai8ti& these 
parts of thecfaaige. 

^ There is indeed a case reported bj Elchies, Bur. R07. Na 30, from 
the report of which it might be inferred, that a prosecution sgainst bri- 
bery, in an election of magistrates, had heen sustained under the acts^ A 
•onplaint was presented under the acts 2d Geo. IL and leih Qeo. II* 
against an election of mi^^istEates in Culross, candudupg to hsvethatelec* 
tion set aside on the score that bribes were given, as the report bearsi ' to 

* vote for such persons as would support Colonel Haldane,' one of the can- 
didates for the parliamentary representation of the buigh ; and concluding 
ftr the penalty of the act Sd Geo. II. It was olg«cted that the election 
camplaiBed of was not that of a member to Parliament, and tlait it did not 
yet appear whether any of the respondents would be electors of delegates* 
to which cases the acts applied. The Court repelled this objection, and 
allowed a proof of the bribery, before answer, *■ though it does not yet ap- 
*• pear whether the respondents shall be electon of delegates, yet that may 
^be cleaxed belbce advising the proof;* or, sb it is ezpreased ii» Lotd £U 
chies* notes, voL ii. p. 83, ' hitherto it could not afipear whether then 
*' was place for the fines of L. 600 libelled, till a new Parliament should he 

* called.* From this report, it might be inferred, that the bribery com- 
phdned of referred merely to the election of magistrates, the briber taUng 
his chance, that if he once secured acouneil infak intensta, tbe tuhie- 
qiicnt steps would be In his ftvour. But, on rttfenriag to the Sesrioa i^ 
pers in the Advocates* Library» it appears that the corrupt baxgain fiolher 
extended to the choosing such a dekgaie as would vote for Col<mel Hal- 
dane, which is a case within the acts. It is also stated in the compluit, 
that the bond for L. 400, mentioned in the report of tiie case, was lodged 
with a third party, till after the election of the member of Fttiianent, by 
wliich tiine, it would appear whether the town-council acted agxeesUj to 
the anangement, and was to be delivered up, if the terms were kept. 



OF BRIBERY. 293 

it was pleaded, although faintly, that there being no star, 
tute against giving money for procuring votes at a Michaehnas 
decticxi in a borough, the Court of Session had no power to 
prcdufait such a commerce ; but the Judges unanimously sus- 
tained their jurisdiction in such a case, and rejected the 
votes of the briber and bribed \ 

In England it is held that bribery is a crime at common 
law, and punishable by indictmait or information ' ; and con- 
victions have been obtained in the coiurts of law, and sen- 
fences of imprisonment and heavy fines awarded, for which 
convictions there is no authority in the statutes. Thus Sir 
Ifanassah Lopez was sentenced' to pay a fine of L. 10,000 
to the King, and to be imprisoned for two years, for repeated 
.acts of bribery at the election for the borough of Barnstaple \ 

* Msfkenalffm «. Scot, 7th August 1759 ; Sel. Deds. 

* fleeBn^Mrs Election Gases, toL iL p. 400; also Male on Elections, 
p. 339 and 346. For a variety of questions of nioet j in the law of bribery 
-in England, see ]>ougla8, p. 410. 

* 19th November 1810. 

* Bee other examples, Male on Elections, p. 362^ 



( 295 ) 



PART IIL 

-OF THE ELECTION OF THE EEFRESENTATIYES OF THE 
ROYAL BOBOUGHS OF SCOTLAND. 

luwMMY one of the fourteeii ckuses into which the royal bo- 
Toughflof Scotland, with the exception of Edinburgh, are divid- 
"^69 elects its repreaeatative to parliament by means of delegates 
aent 60m every borough of which the class conasts. The 
dection of those delegates is vested in the Magistrates and 
Tcywn Council of the di&rent boroughs. Hence the election 
of the representatives of the royal boroughs ultimatdy de- 
pends on that of the magistrates and council ; and it becomes 
tbaeSore neeeasary to enter into some inquiry with respect to 
the piindples on which the election of magistrates aad coun* 
-ol is conducted. This subject will form the subject of the 
.fim phapter of this part 



CHAPTER I. 

OF THE ELECTION OF THE MAOISTKATES AND COUKCII. 

or THE EOYAL BOBOUGHS. 

Ik the Historical Essay annexed to this work, will be found 
nome account of the Constitution of the Royal Boroughs of . 
Scotland, and of the progressive dianges which have taken 
|Aaoe in the mode of electing tlieir magistrates. The sub- 
jeet of this chapter shall be the order of procedure now 
observed at elections of magistrates, and the legal principles 
upon which they are conducted. 



396 OF THE ELECTION OF MAOISTliATES. . 

• 

The first step at the meeting for election of magistraies <xi 
the day appointed by the set, b to read the act ftd Greo. II. 
c. 84, agunst bribery, as directed by the 9th secUon of th^it 
act The electors then take the oaths to government In 
one instance, a person had been chosen deacon of the Incor- 
poration of Tulors, in a royal borough, in September 1790» 
but had not taken his seat, or acted in that capacity, till the 
27th September I79I9 at the election <^ magistrates ; and 
when the oaths to government were tendered to him, he ad* 
ded the qualification, * that he took them so far as was agrae- 
* able to the word of God/ The result of the election de- 
pending on the vote of this person, a oomjrfaint was prafivnd, 
when, on the 24th December, he took the oaths in the Court 
of SesMon, without any iieservation. In these ciicunstanoes, 
the Court repelled the objection to bis vote, chiefly influcneed 
by the consideration, that, as the enactments after the UnioD 
authorised the party at any time within three mondis i^ier 
his admission into office, to take the requisite oaths^ his aetkigs 
in the mean time were to be considered as legsl K 

When the oaths have been taken, the electors go thfougH 
the several steps of the election in terns of the set ^ the 
borough. 

The magistrates and council have of course no right to 
proceed to elecUon before the day fixed by the set or by the 
usage of the borough ; and any election made contrary to 
this rule will be liable to reduction '. 

The principle is now fully established by a series of cases, 
that where the set of the borough does not specify any parti* 
citlar number as a quorum of the magistrates and councii^ a 
majority of the body must attend to oonstitufee a legal as- 

' Banks and others v. Jaffray and others, 6th June 1792 ; Fac 

* Upon this, amongst other grounds, the election was set aside In a case 

from Jedburgh in 178S ; and the judgment was afilnned on sppeal- 

Cndgte and Stewards Reports, voi i. p.S07. 



FORCE. 297 

semUf, whether at the actual etectaon of magistrates ^ or at 
a prerioua meeting immediately affecting the election. This 
bner pcnnt was decided in a case where the right of presiding 
at the election, and of giving a double vote in case of equa- 
fity, depended on the validity of the meeting immediately 
preceding, as the prendent of that meeting, if legal, was en- 
tided to preade at the election '. The same prindple is held, 
although those who do not attend the meeting have wilfully 
absmted themselves '. It seems, however, to be held, that 
Btich as wilfully absent themselves have no title ta complain 
o# the proceedings \ 

Tlie employment of force or violence, so as to deprive a 
candidate <»f the support which he otherwise would have had, 
is a just ground of complaint, as being directly at variance 
with that freedom of choice which is the essence of an elec- 
tkn. In a case in which four deacons had forcibly been kept 
from an election of magistrates for Inverkeithing, for which 
pmpese a warrant of two justices of the peace, and the aid 
of constables, had even been obtained, the Court not only 
reduced the deetion of those who had employed the violence, 
but took into account the votes of the excluded persons, who, 
it appears, had given th«r suffrages at the foot of the stair of 
the eouncil-fnoni, and sustained the election of that party ^ In 
a subsequent ease, the Court reduced an election for the same 
boraagfa, on the ground that it had been * brought about by 
< means of force, bribery and corruption,^ on the part of the 
succcafol fcetion. They, however, refused to sustain the elec- 

* Mamm and others v. Maf^strates of St Andrew^s, Kilk. p. I07. £]ch. 
«u Bur. Bojs Nti. 88i Tod, DavidKm and others v* Tod and othen, 
17th June 1894 ; Shaw. 

* Mcik^john and others v. Maaterton and others, 2Sth May 1809. 

^ Mason, nyw*; Tod, tupra. * Mason, npni Tod, mpra, 

^ Cunningham and others v. Henderson and others, Slst July 1746* 
Elchies, Bur. Roy., No 82. Wight, p. 343. Falc L p. SO. 



S9B OF THE ELECTION OF MAGISTRATES. 

tion of die other party, against whom also biibery waa oata- 
hiiihedi. 

It IB dear -that the foicifaly depnviag the oppoatie frnttj 
of a portum of hia Yotea, must annul the elaolion of the party 
unag auch violeuoe, if theae votes would have aecuved a ma- 
jority to the losing pa]>ty ; and tins was.the ease in the fiait 
mentioned of the above dedsions. But what shall we nttf if 
it trans out that the gaining party would have had a mqoriiy, 
even if they had not exduded these votes? It radier ap- 
pears that the same result ought to £riiow in thia case aln^ 
where the violence is open and maniieBt, and of soch a na- 
ture as to give any room to suppose that it may have jnAn- 
eneed the minds even of those against whom it was not im- 
racdiatdy directed. Thus, in the seeond menticBed of the 
above decisions, the qpecaes of viol^ce used hy one c^ the 
candidates for the magistracy^ in addition to hribery, was the 
intioductbn of sevend press-gangs, whieh were employed in 
keejung in confinement some of the electors, and in terrify- 
ing others. On these fiKts, the Ckrart, aooordiqg to Lord 
Kames^ ^ were unanimously of opinion ; Imo, That bribery 

* can haveno further effect than lo disqualify the bribers, and 
« thosejwho aretbrihed. Sdo, That-wheiv&wee is used, aatheie 

* are no means for ascertaining what inAoenceit has^upentbe 

< dection, jn^es must other give it no effeet at all, which 

< can never be rights or give it a total efleot, to reduce the 

It has dso been made a question whtdier the detaiaiog of 
only one member of the opposite party ought to cast the 
dection of the users of that violence, if the person so detain- 
ed would not have had thccfleet of casting the faaianoe. Mr 

■ 

^ HsMsne and othen v. Hsilmra and othen, 4Ui. Auguit 17ai. Fac 
andeM.Dacte.p.S4S; and^ight, p.861. A petition againattiM part 
of Uiia judgnent rekting to the election by the miaaritfy waa diamiaMd 
on a point of Rmn. 

' Sal. Decia. p^ 84S. See alao Elchiea* report of the InvezteiUiing case 
in 174S, Buigh Royal, No. )I2; and his notes on it in 1755. 



FORCE. i99 

Wiglit iBcl»8 to the -negative of ^tlus queslmi, cibiBmiig, 
thai force ought to operate so fiur as to disqualify llioBeac- 
iMwmn'y to it, but that it wmy be doidsted if it eoght to be 
eaniediailher ^ TheiekaboaeasedBoided in theiiouseof 
Lends, which periiaps may be held to lead to the condiaaon, 
that in audi a sitaation the fiwee oo|^ to be entifely disre- 
gMded. On the eve of an ^electioii in the hoDough cf Dun- 
bartcm, a councillor having been forcibly carried away, one 
of tiie other party was, by virtue of a justidaiy warrant, com- 
mitted to the castle of Dunbarton asaonoemed in this vio- 
lenae. On<the day of deokion, eight persons dnseone set of 
jiitrates, and six persons chose another. The farmerof 
alectoons was fedueed by the Court of Session, on the 
gnund, that the imprisoaing the party in Dunbarton Castle 
^ was a oontrivanoe of design, to disable him foom bangpre- 
* aent at the ensuing dection,^ and that those elected were ae- 
oessoiy to this dasign. On an appeal to the House, of Lords, 
this des^ was denied ; and, it was fafdier pleaded, that even 
lating thispefBon^s vote into account, the appellants still had 
E' majority of voters. The judgment of (the Court of Sea- 
siaawaa aevened, and the dection of the appellants confirm- 
ed ; but it appears. doubtful on what ground the House of 



On/the other hand, the following report by Lord Xilker- 
fvaof theopiaion of theCourt in a hmer inrtanoe, periiaps 
leads to a diflisrent conclusion fram that to which Mr Wight 
inriwifli . < it waa the imaiiinious opinion,^ says Losd JCiher- 
nan % * bfdie Court, although: diere was no oooMon to give di^ 
^'reer)w%ment upon it, That, as the heeping away a member 
*'0f » town coum^ from 'tbcf meeting by force, wiB void the 
* whole* proceedings, so keeping 'one away by fraudulent oom- 

> Wight, p. 344. 

' Smollett and others v. Bunteim and others, 19th Feb. 1730 ; Craigie 
and Stewart's cases, L p. 26. 

> P. sei. Convener and Trades of Aberbrothock v. Ma^trates and 
Council, Ist Jttfy 1740. 



SOO OF T&E ELECTION OF MAGISTRATES. 



* binftCioo, diough witiiout Ibice^ bat wiA an ap|MU«it dengn 

* to esrry an elactkm, will have the same efieet* But 
it dees not distmctly appear team this statement what eflRsct 
the flingle vote aUnded to might have upon the baknoeof the 
deelion. 

Threats, when cl such a nature as to give just ground fiir 
liear, must be judged of in the same way as fiirce, bangnqpai- 
valent to it \ 

The same i«nk must attend the keeping a voter away fay 
a finaudulent combinaticHi to deceive or intcnicate him *. 

With respect to the effect of bribery on the nominatifin of 
BMigistrates, questmns have at various times oocumd in the 
Court of Sesnon ; and sudi questions, it has been already 
stated, are to be viewed as arisii^ at common law'. The 
statutes relating to bribery do not apply to the case of the 
iqipaintment of magistrates. 

Bribery in such dections has been reduced to two heads, 
those means of corruption of whidi a whole ooiporstion are 
to derive the advantage, and those which are used, for the 
benefit of individuals of that community K The efiect of the 
farmer kind is held to be mudi more fatal to an dection than 
Aat of the latter, inasmudi as its operation is more exten* 
ave. In the foOowing instances, dections of magistmtes were 
set aside, cm the ground of the former species of c orni p ii on. 

In a complaint against the election, in the year 17fl6, of 
magistrates for Pittenweem, it was proved that a comipt 
baigain had been entered into with one of the baiUes in name 
of the town council, bearing, that they should reodve L.1009 
for payment of the debts of the town, the surplus to be d? 
vided amongst the m«ib«n of the town coundl. In defeno 
it was maintained, in the face of the evidence, thai the ba* 
gun was only toiiold if the town council were unanimou: 

> WighU p* 34& 

^ See Lord Kilkemui*B report of the Arbroath case, Ist July 174 
sufrHf p. 899. *" 

"^ See p. S92. yg^ ^^ * Wight, p. 346. 




SBJBEBY. 801 

and if ihe bribery oath werejootpatat tbeeUclioaof i^oam- 
nuMoner, whereas the council were not onanuo^itty and the 
oath was put ; and, farther, the town debt was not paid. To 
tlua defimo^ it was held a suflkient answer, that the tneaty 
had operated as effectually as if it had been aetually earned 
inio eaEeeiition ; and that although it was g^ven out that the 
baipin was at an end, in order to make way for the taking 
of the bribery oath, it was still understood by the rnaff/^- 
tiates and councillors that the town debt was to be paid, as 
soonas it could be done with safety. The election wasthere- 
fore annulled ^ 

In another case which was decided soon asfter, the brother 
of one of the candidates for the Haddington and Jedburgh 
dutrict of boroughs, had, in 1766, granted one acceptance 
fiir L. 1S60, forthe use of the town of Jedbuigb, and anoth^ 
for L. 850, for the use of the trades of the town ; and both 
were made pfliyable to two of the then magistrates, who grant- 
ed an obligation that, if the borough should not give its vote, 
«t the ensuing general election, for the brother of the granter 
of these acceptances, they should be returned* Soon after this, 
OQ getting advice of the illegality of the transactbn, the ac- 
ceptances and obligation were mutually delivered up. In these 
carcumstances^ the subsequent election of magistratea for Jed« 
boigh, in the year 1767, was set aside by the Court of Session, 
akhoi^ it was pleaded^ b defence, that the transaction had 
oa lebitioo to the election of magistrates, but only to that of 
the member of Pariiament, and although it bad been done 
away when its illegality was discovered K 

The like principle was followed in a case where a whole 
town council were ocMrnipted by an engagement to pay the town 

* Anstruther o. Al^umder, Ac or Ramaaj and othen v* Martin and 
mlwn, 24th, seth, and 38th January IW' Select Deds. and Wight, 
p. 3461 AflKnned. 

< Alexander and othen v. Winterup and othera, Uih March 17601 
Wight, p. 349. 



SM OF TH£ ELECTION C^ MAGISTRATES. 

JllH i ^ a.tiiOi^ thtte was* no erkkMe tlurt tliOBe toted into 
ike ooMflil knew»«ftlM bifgttia ^ 

Hie ahMMt iafwiebfe mbmH ef a bribe, of whiA the wbofe 
cerpontion is to^dcme the benefit, wiH ^erefere be a ^nsid^ 
floee of the iiphole election,— altheugh, in oae instance^, ivbere 
llie candidate t&t the fepreseataitioB of a dnisriet of boroo^a, 
hwidttD giving vavioas bribes to individuals of liie magistmef 
of one of the boroughs, piesented L. 100 Sterling U> the town 
IbrbttikBiig a steeple, the CTouft seem only to have * rajeded 
^ Hie votes of the candidate, and of those corrupted by feimV 

On the other hand, the eflfect of the oomipting of iocivi* 
duals will depend on dteumstauoea If anqoritj haveyidd- 
ed to the temptation, the election wiH be reduced'. In a 
case where there was fmxf against fbur <Hr five inditiduab 
only, and there stifl remained a quonnn untainted, the Court 
refused to reduce \ Where, in an election of new ooundl* 
lors, the votes stood four to six, and one of the six acknow- 
led^^ that he had been bribed by one of the persons dected.. 
the Cburt only ' found bribery relevant to annul the votes of 
< the bribers and bribed V 

In a case where the election by the majority was set andie 
on the grounds of force and bribery, the Court refbsed to sus* 
tain the election by the minority, because bribery was pnyved 
against the provost elected by the latter party *. 

It is not necessary, to constitute briboy, that the persons 
recetring money shall have made an actual promise of sup^ 
port at the tame^; nor is it always essential that the giver 

» Young «. Johnstone, 7th August 17«7 ; SeL Deds. p. 326. 

* Madtenzles v. Scott, 7th Aug. 1769 ; Sel Deds. 
« WMt'ABstmtlMr, 17117 1 S«L I»eds. pu at4 

« Kilrenny, 1767; Sd. Deds. p. 3S4. 

« Bkechln^ 14tli J«n. 1727 ; WJght^ p. 86a 

• RUdsae v. Hol1nln^ 12kh Mflr. mi ; Ssk Deds. ; l^ngfat, p. 5S1« 
Wight adds, that two of the hailies elected bj the mbioii^ had been 
Mbed. 

' See tlw cue ofMadDeBEieso. Scot, 7th Aug. 17M; SeL Beds. 



B&IBE&Y. ILLEGAL COMPACT^ 3M 

aball htare exfjUniri clift{nirpDielie<lHid inoriewim betMr^ 
any gntmtj. TUs paf|io0e may be jofennedL Beam agnate 
stances. Tbnstf aperaoaamioanseliimaelf asesaffidiitef^ 
a boieiig^. and difltribate Tstious aiiias^iiioii^:tOitlie:t0WB 
at large, sad to iadivaduals in the magvtmey, kis obysotcaaii 
act be miitfakm, and tfaeie is no need e£ e^idqioe dialiie aaked 
attpfmn in his election K 

A bribe given to a wife ooght nat to disqnaliSf the hus* 
band, if be is ignonBit of the gift^ 

It ie no tmHwient defence against S'Complaint on^the giouad 
of favSieiy, to maintain that the complainets weie thanaeliws 
gttilty of that offieace, and aa arebamd) fmrmnaR eaeotpiione^ 
Aon inaieling in aisoh a ground of laduotioo of the electiaD^. 
If such a defence were to be suatainedy these would be no 
■aaans of aetting aaide an election in which all thepartfesoan* 
oamedhad had reoourae to corrupt means, and thus the moie 
wiciDus the pvaceedings were, the heUar duuioe they would 
faave of being undtaUengeaUe* In a ease <rfken aheady aU 
haded to an election was reduced , although bribery was piroTed 
againat the coaoplaiaers ; and although the Gourt lefuaed, on 
that ground, to sustain the oomplainer^s own eleetioa : but it 
doea not appear that, in that instance, the bribery had been 
alated, w» Ikmnej in the shape of an objecoon to the title of 
the conqiiainers ^ 

AkiB to feaee and bribery, m point of interfefemewith the 
genniae spiiitof m election, is a praetioe whidi haascmetinies 
been followed, of entering into a written bond or agreement, 
irbenliy a oertmn nun^r of those having a right to yote in 
the election of magistrates and council, bind themselves, sonm- 
under a p^ialty of mon^, or of bring eatsemed infiu 
to stand by one another, and support any candidetea 
whom the persons so bound, or the major part of them, diall 
readve to elect Such agreements are now invariably held to 

SuckciudcS} Sup, 
* 8eeWl|^t, p. 861. * Wight, p. 858. * Hsldme Skip. 



9M OF -THE SLSCTION 0¥ MAGISTRATES. 

be mmm bmm MotvVy and illignL and a w i flwhn t groniid fiar 
MttiiigaaideaD dedioii ef magialialeB wfaicbhas bMn brou^rt 
about by diem. It hat eAes bam alremcly difllcult to aa- 
certabi the p ta cioe terras of the eompacc, becanae the paatiffB, 
aomcioiiB of iib i mproper nature, have frequently taken good 
care to caneel the wiitten evideoee of thar arime. But, in 
auch cases when the question has oome into Court, the gene- 
ral scope of the bond has genially been, to a considerable 
eztoit, ascertained by admissjons on the part of the defsndcn; 
and the Court haye been in the habit of allowing a proof at 
large to both parties, in sufqport of their Rspecdvealkfationa. 
The various aspects which such questions have assumed, wiU 
best appear from a brief acomint of the cas^ which haire htem 
reported oa the subject. 

In the year VtSISt, a bond of this nature was entered iiiB» 
by thirteen of the counciUors of the buigh of Kinghem, 
whereby they bound tb^nselves, * under the penaky of 500 

< meiks, and of being esteemed infamous and unfit for society, 

< to act in concert with one aQ6ther, and give their votes plom 

< at the dection of the magistratesof the said buigh, tobeoo 
' Wednesday next, the 4ith October, to such persons as die 

* major part of them should think most worthy of the office 
^ of magistracy, till the nest election at Michaelmas 1788^ 

< and then to vote with one another for such persons m tfacgr* 

< or the m^or part of them, should think proper to succeed 

* in the niagpatracy, and in the council, for the good benefitef 

* the buigh.'' At the election of ma^uitrates, a separation of 
parties took place, and each faction made a choice of m^s* 
trales. Mutual actions of reduction were raised ; and, in that 
at the instance c^ one of the parties, a defence was setup thalt 
die bond was sufficient to annul the election of their oppo» 
nents. Th^ Court at first found that the paction was ^ coniita 

< h(mo8 moreSf unwarrantable and unlawful i* but afterwards 
decided diat it was not sufficient, per se, to annul the eleo- 
tion ; . and subsequently gave, the same judgment with reifiect 

4 



OF BBIBERV. S89 



uied against him, should have been exhibited with the 
plaint^ The time for oommaicing proaecutioa is Mmited to 
two years from the incurring of the penalty *, and the process 
mst be served on the accusied within that period'. 

By the act 16th Geo. II. c. 11, sect. 33, it is dedared, 
that the electcHrs of oommisGioners ot delegates, for any royal 
borough in Scotland, for choosing burgesses to Parliament, 
are, within the intent of the act Sd Geo. II, to be considered 
as electors of the member to serve in Pariiament, and are 
liable to the provisions and forfeitures of that act. The act 
16th Geo. II. however, substitutes another oath ^, to be taken 
by every voter at the election of a commissioner f<Mr choosing 
a member, if demanded by any one elector, instead of the 
oath of Sd Geo. II. An oath^ is also prescribed for the 
cleric of each borough, at election of oommissicmers for 
choosing burgesses ; and another oath ^ for the clerk of the 
presiding IxNrough, at the meeting of the commissioners for 
choosing a burgess. 

The statute Sd Geo. II. applies only to the case where 
the money or other reward is given to the voter, and not to 
the case where it is given to a third party, to induce him to 
procure the return of any member. With the view of meet- 
ing this latter case, the act 49th Greo. III. c. 118, was passed, 
by the first section of which it was enacted, that ^ If any per- 
' son or persons shall, from and aflter the passing of this act, 
< either by himself, herself, or themsdves, or by any other 

* person or penons, for or on his, her, or their bdialf, give, 

* or cause to be given, directly or indirectly, at promise or 

* agree to give any sum of money, gift, or reward, to any 

1 Irwin Bu Adam, July 1768 ; Wight, p. 27& 
'Sect 11. 3 9th (jeo. II. c 38. 

* See this oath mfra, under Election of Delegates 
^ See this oath to/Vv, under Election of Delegates. 

* See tUs oath ii»J^ under the Eleotiun of the Representative of a Bo- 
rough. 

T 



SOS' OF THE ELECTIOX^ OF MAGISTBATES. 



of • the libiid'iv«s:£iflfaen proved /b^ a writer in SUriing, and 
other whii^ss^ ^hereafker.a firbof was led hj faoth parties ; 
amA, when tbcfCourt were about to pronounce judgment upon 
it/ the deliMHJierB) for die first time, bethought themselves of a 
plea' in biif of thb above prootedings,«^b«t the electkm was 
ununmotitf, and that,* therefoie, a complaint was incompetent 
under the* 16lb of Geo. XI.| whilst the complainers %vere bar- 
red ftom'diall^nging theirownacts, on an all^pition of their 
own •guilt Tbb Court, however, repelled the objecdon to the 
dUe of the eompkuners ; found that the bonds were * illegal, 
< ifflrwarrantaMe, aiid dmira hanbs mo/ruC «nd reduced the 
election at Michaelmas 177^^ 

The last case which occurred, originated in a complaint 
i^ainst the election at Michaelnias 1821, of magistrates and 
ooandllor» of the borough of Lanark. It was alleged that 
nine members cX the council, being a majority of the electors, 
subscribed, previous to the election, an agreement, containing 
the following Words, or others of the same meaning : — ^ We, 
^ the underagned, agree to stand l^ one imotfaer in forming a 
''new oouildl, in the ensuing election for this biirgh ; and, in 
' case of any difference of c^inion, the minority of us are 
' bound lb fall in with the majority ;^ that, in point of fact, a 
majority of the subsmbers had fixed upon the new members 
of the magistracy and council ; and that this bond was in ex- 
istence a considerable time after the date of the decdon. The 
defenders denied that they had subscribed the writing men- 
tioned, or any bond whatever ; but admitted that some of the 
persons named had subscribed a memorandum relative to the 
propriety of excluding certain individuals who could not be 
re-elected with advantage to the community. ' That wridng, 
it was stated, had been destroyed ten or twelve days before 
the election, and all were at liberty to act as they thought fit. 

^ Paterson and others v. Magistntes and Town Council of Stirling, 
Isl Mar. 1776 ; Fac. 



TOWN SERVANTS. 307 

The Court were unanimously of opinion^ that there was no ma- 
terial distinction between this case and that of Stirling, and 
that the allegations of the complainers were relevant ; and they 
granted a diligence for recovery of the writing. From the 
examination of some of the defenders, it appeared that a wri- 
ting relative to the election had been purposely destroyed 
shortly before the election. A remit was afterwards made to 
the Jury- Court, to have the matters of fact determined ; but 
a doubt having in that Court occurred, whether the contents 
of the writing should not first have been ascertained by a pro- 
cess of proving of the tenor, the cause was retransmitted ; 
when it was maintained by the complainers that such a pro- 
cess was only necessary when the deed might be enforced in a 
court of justice, but could not apply to an unlawful docu- 
ment. The Court found that a proving the tenor was not ne- 
cessary, and granted a proof on commission, instead of send- 
ing the cause back to the Jury-Court '. 

Town-ser%'ants, pensioners, and beidmen, are excluded 
from voting in borough elections, as being liable to influence*. 
Accordingly, it was found that town-officers and pensioners 
of a borough could not vote in the election of a deacon ^ 
In a subsequent case, a person who was town-oificer and 
trades^fHcer, and another who was gaoler, all of these situa^ 
tions being removeable at the pleasure of the magistrates, 

^ Hutdieaon ^d others, v. Tod and others, 17th May 1823; Fac. 

' Act. of Convention 1689, c. 22, which, although calculated for a par- 
ticular period, is held declaratory of the common law ; Wight, p. 345. 

' Hutton and others v. Knox and others, 23d July 1774 ; Hailes, p. 588. 
From' the report of this case, it appears that the House of Lords had pre- 
viously pronounced a different judgment, with respect to the bellman of 
Haddington ; but the Lord President, in this case of Hutton, held that 
decision of the House of Lords to be at variance With the consuetudinary 
law, as recoguixed by the Act of Convention at the Revolution. From the 
report of the Haddington case, by Messrs Steuart and Craigie, vol. i. p. I7I 
note, it appears doubtful whether the House of Jjords really did sustain 
the bellman's vote. See also Wight, p. 345. 

U 2 



I 



308 OF THE ELECTION OF MAGISTRATES. 

were found incapable of voting in the election of a deacon eS 
weavers ^ Mere poverty, however, will not constitute a dis- 
qualification, if the voter is not the object of public charity, 
as a partake of the kirk-session allowance, or other public 
diaritable fund. In one instance it was found, that the dr- 
cumstances of having got a certificate of poverty and inability 
to pay road-money ; of having, in consequence, been exempt- 
ed from such payment ; and of not having paid cess or heuae- 
tax, did not constitute a disqualification from voting in making 
out a leet by an incorporation, from which leet a certain num- 
ber of councillors were to be selected by the magistrates '. In 
this case, it was laid down by Lord President Blair, ^ That» 

* so far from mere poverty creating a disqualification of this 

* sort, even insolvency » the culpable non-payment of just 

* debts, had not that effect ; a man might vole though he 
< was worth much less than nothing ; nay actually under cap- 

* tion at the moment of elecdon/ Neither is the circumstance 
of being indebted to the particular borough in which the vote 
is given, held to create such a d^ree* of dependence as to 
amount to a disqualification. In a case where an act of the 
Town Council of Rutherglen had excluded all persons indebt- 
ed to the town by bond, tack-duty, or otherwise, a counter 
act,, rescinding the former,^ was sustained by the Court, when 
brought under reduction, as the former was thought at va- 
riance with the common law rights of the burgesses \ 

Honorary burgesses are excluded from voting ^> but, in a 
ease where it was objected that a majority of voters held 
merely honorary burgess and guild tickets, the Court were 
unanimously of opinion that, as the burgess-tickets had been 
granted as an inducement to enter the volunteer corps of the 

1 High V. Main, eth Aug. 1789 ; Fac. 

s Fleming and others «. Graj and others, 6th July 1810 ; Fac 
> Fleming and others v. Urie and others, 9th May 1778; Tak, (v 404k 
Sup. to Mor., and in/ra^ p. 397* ^i »eq» note. 
* Act of Convention 1689, c.22. 



MINORS. SEPARATIONS. 309 

town, although ^vithout payment of the ordinary dues, they 
conferred the full right of burgesses ^ 

Minors cannot vote in borough elections. This has been 
found with respect to the elections of deacons * ; and, in a case 
from Rutherglen, with respect to the forming of leets by 
trades' incorporations, for the subsequent choice of council* 
lors ' ; and the same principle applies with respect to other 
stages of borough elections. It is equally incompetent for a 
minor to be an office-bearer or councillor ; and, where a mi- 
nor had been elected into one of these situations, the Court 
were unanimously of opinion that the town council might 
suspend him ^. 

To prevent double elections, it was provided by the act 
7. Geo. II. c. 16, that no magistrate nor councillor should 

* separate from the majority of the magistrates and council - 

* lors who have been such for the preceding year,' &c. ' and 

* if, contrary to the direction of this act, any number of ma- 

* gistrates or councillors shall, in opposition to the majority, 
' take upon them to make a distinct and separate election of 
' magistrates or councillors, their act and election shall be 

* ipso facto void ; and every magistrate or councillor who 
' concurred therein, shall forfeit and lose the sum of L. 100 

* Sterling, to be recovered by the magistrates and councillors 

* from whom they separated, in manner hereinafter directed.'' 

In a case which originated under this act, eleven but of 
twenty-five councillors proceeded to an election on an unusual 
day, when six councillors were out of town, and the remain- 
ing eight withdrew from them. These eight subsequently, in 

* M«son o. Magistrates of Montrose, 15th November 1821 : Fac. and 
Shaw. See p. 330. for another question arising out of this case relative to 
the burgess-ticket of the person elected provost. 

* Rogers and others, members of the Town Council of Selkirk v. Hender* 
son and others, 3d February 1761 ; Fac Hutton and others «. Knox and 
others, 23d July 1771 ; Hailes, p. 688. Ogilvy v. Magistrates of Edin- 
burgh, 6th February 1810 ; Fac. 

9 3d July 1747 ; Elchies, vol ii p. 78. 

« Jaflray o. Magistrates of Stirling, 21st July 1741 ; Kilk. p. 321. 



310 



OF THE ELECTION OF MAGISTRATES. 



conjunction with the six, after due notice to the whole, pro- 
ceeded to elect. In these circumstances, it was found that the 
clause of the 7th Geo. II. did not apply, so as either to void 
the new election made by the fourteen, or to subject the eight 
who withdrew to the penalties of the act ^ . This judgment 
was, however, reversed on appeal ; but as there were other 
points in the case, it is uncertain on what ground the reversal 
proceeded^. 

The provision of the act 7th Geo. II. was somewhat varied 
in the; subsequent statute 16th Geo. II. c. 11 ; by the SSd 
section of which it was enacted, * That at the annual election 
of ma^strates and councillors, and in all the proceeding^ 
previous to the election of the magistrates and councillors 
for the succeeding year, it shall not be lawful for the mino- 
rity of any meeting for election, either of magistrates or 
councillors, or deacons, or other persons, who, by the con- 
stitution of the respective boroughs, may have votes in the 
election of ma^strates or councillors, to separate from the 
majority of those having right to act by the constitution of 
the borough at such meetings, upon any pretext whatsoever ; 
nor to make any separate election of magistrates, councillors, 
or electors ; but the minority shall, in all eases, submit to 
the election made by the majority in all the parts of elec- 
tion ; and if any person elected by the minority of any such 
meeting shall presume to vote in the election of magistrates 
or councillors, or in leeting the magistrates or councillors, or 
in any other step of the election, he shall forfeit the sum of 
L. 100 Sterling to any one of the majority of such meeting,, 
to be recovered by him in the manner hereafter directed.'* 
And by the S3d section of this statute, it was farther enact- 
ed, ^ that no person elected to be a magistrate or ooundllor by 
^ a minority of those having right to vote in elections of the 



^ Magistrates of Jedburgh competing, Ist February 1739- 
Burgli Rojral, No. 9. See also Nos. 13 and 16. 
' Craigie and Stewart's Appeal Caaes, voL I p. 207. 



Elcbies 



SEPARATIONS. 311 

* iMgistrates and councillors, shall, upon any pretext whatso- 

* ever, presume to act as magistrate or councillor ; and if any 
' person shall, notwithstanding, presume to act as magistrate 

* or oounciUGr, he shall, for every such offence, forfeit the sum 

* of L. 100 Sterling to the magistrates or councillors elected 

* by the majority, or to any of them who shall sue for the 

* same, to be recovered by him or them in the manner here- 
' inafter directed.^ 

Subsequently to this act, the following question arose : — 
A town«council b«ng equally divided, it fell upon the person 
who last presided at the meeting to take the chair at the 
annual election, and give the casting vote. One person had 
presided at a meeting on the lOth July ; but the opposite party 
called a meetmg on the S8th September, at which another 
individual presided, imd which was not attended by the other 
faction. On the day of annual election, both parties miet se- 
parately, and chose magbtrates. The party which had the 
chair on the 10th July, brought a oompbuit against the 
others under the statutes. It was decided, in the first place, 
that the meeting of 88th September was not l^gal, as not hav- 
ing been attended by a majority of councillors ; and on this 
ground the dection made by the respondents was reduced. On 
the question of penalties, however, the majority of the Court 
held, that the true construction of the statutes was, that 
the apparent, and not the legal, majority was meant ; that die 
minates shewed that a meeting had been held on the 38th ^ 
Se[irtember, the legality of which the ooundl Were neither 
bound nor able to determine ; that, therefore, the apparent 
majority on the S9th was with the party which had met on 
the 5E8th ; and that even if the proper construction c^ the 
statutes was different, there seemed no reason in sUcb cases to 
keep ibebonajldes of the parties out of vi^w. On these 
gmuodSf the Court found tfiat no penalties had been in- 
curred *. 

^ Meiklejohn and others v. Martin and others, 26th XoremberldlS $ Fac. 



312 OF THE ELECTION OF MAGISTRATES. 

The mere cinnimBtaoce of aeparatiog and leaving the place 
of meedng, does not render the party so acting liable to the 
penaUies, unless they are a minority. The statutes apply on- 
ly to the case of a nunority separating from a majority ; and, 
therefore, if the party leaving the other is truly a majority of 
the meeting, the case does not fail under the statutes. This 
was decided in relation to the act 7th Geo. II., in a case de- 
termined before the statute 16th Geo. II. was passed'. 

It has been already mentioned, that the act 14699 c. 30, 
declares, that ' it is thought expedient, that na officiares nor 

* council be continued, after the king^s lawes of buroughs, fur- 

* ther than one %etr^ (one year).'' The statute 1503, c. 80y 
^ also ordains, that all officiares, provestes, bailies, and others 

* havand office of jurisdiction within burro wes, be chamged 
*' zeirb/.'* In an action of declarator brought about the yei^ 
1680 by certain bailies and burgesses of Stirling, against the 
provost and other magistrates of the town> to have it found, 
that the defenders had violated these statutes, by continuing 
themselves in the magistracy, it was alleged in defirace, * that 

* the statutes foimded on were in desuetude, and that the 
f several buroughs in the kingdom had by prescription their 

* different customs settled, that neither justice nor polide 
^ would allow to be altered f but the Court * repelled thede* 

* fence of desuetude and prescription, and found the statutes 
^ founded on not concerning private right, but the public good 
^ of the kingdom; to stand in vigour ;' and ordained, that the 
niajor part of the council at least, should be amiually 
changed, and that no person should continue to be provost, 
bfulie, or othel* officers, more than two years '. This judg- 
ment, it will be observed, was inconsistent with itseU^ in so 
far as regarded the office-bearers, because if the statutes were 
in force, in .all respects, then it was essential that an Oftntiol^ 

1 Perth election, 11th February 1731 ; Elchies, Burgh Rojsl, No. IC ; 
and Cnigie and Stewart's Reports, voL i. p. 318. 
* iack o. Town of Stirling, 27th January 1681 ; Stair, 



HESIDENCE. SSI 

and not a biennial^ change should have taken place in the 
magistracy. In an action of declarator brought near a cen- 
tury afterwards, to have it found that no one could hold the 
office of provost of Kinghom for above two years at once, 
a very general practice to continue that office for a longer pe- 
riod, both in this and other boroughs, was alleged, and not 
denied by the pursuers ; and the Court, on that ground, as- 
scnlzied the defenders ^ There is no doubt that these acts, as 
well as some other statutes relating to residence, are in desue- 
tude on particular points. 

The subject of residence has given rise to much discussion, 
and in a great variety of shapes. It may first be enquired 
how far residence is necessary to entitle individuals to be 
elected to the various situations in the magistracy and council 
of boroughs. 

The statute-book contains a series of enactments with re- 
spect to the necessity of residence inHhose to be elected ma- 
gistrates of boroughs. The statute 1487, c. 108, ordains the 
act concerning the choosing of officers in boroughs ^ to be ob- 
served in time to come, < so tliat the election of officiars micht 
' be of the best and worthiest indweUers of the town.** The 
act 1685, c. 26, provides, that ^ na man in time cumming be 
^ chosen provest, baillies, or aldermen into burgh, hot they 

* that ar honest and substantious burgesses, mercbandes, and 

* indwellers of the said burgh, under the peine of tinsel of 
^ their freedome, quha does in the contrair.** The act ISOQ, 
a 8, also on the narrative ' that the course intended by his 

< Majesty for dischar^ng noblemen and gentlemen to be elect- 

< ed provosts and magistrates of boroughs^ had not taken pro- 
per effect, ordained, ^ that na man shall, in any time comming, 
^ be capable of provestrie, or other magistracie, within any 

^ Gilchrist and others against Provost, &c. of Kinghom, 5th March 
1771 ; Fac 

' 1400, c. 30, appointing the old council to choose the new, &c. alreadjr 
noticed. 3 



814 OF THE ELECTION OF MAGISTRATES. 

< bui^h of this realme, nor to be deded to anj of the Mtdt 
* offioea within a bur^, but marchaxits and actual traffickers 

< iBbabitidg wiihtn the said burghs allaiierlie, tod na others.^ 

The quaUty of residence is thus laid down in distinct terms 
by this series of ac^ as essential with respect to tboie to he 
dected plovosl and baifies of a borough ; but iti so far mi 
regards the fertner of thesis officies^^ a different rule has oome 
to be well established by usage, sanctioned by deeiaion^'of the 
House of Lords, and of the Court of rSession. 

The first case in which this question appears to have oc- 
curred, was one from the town itf Dumbarton, wherea gentle- 
man who, it was aUeged, had property in Aat town, and. r^^ 
sided there for some time every year, but who oodd not be 
viewed as a trafficking merchant or regular residentir, was 
elected provost. The Court of Session reduced the deotiota, 
on the ground diat he was not ia residient merebant; but 
this judgment was reversed on appeal, alliioug^ it waaaijgiued 
that a puUic act could not go into desuetude \ 

Proceeding on this judgment, the Court of Session, ina.aub» 
s^uent case from the borough of Wick, held that the puUie 
law was in disuse, and found that it was not neceMtfy that 
the provost should be a residenter, although the duoier of 
erection from the croMm expressly required that he should be 
so, which charter, however', had been departed fiom by im- 
memcHial custom in the borough'. 

In a subsequent case in the year 1752 irom BumtistaDd, 
whare the set, as recorded in the year 1710, and long pfaD« 
tice, admitted a non-reaident provost, the Court oo^kmed 
that practice, notwithstanding a decreet of Session in the 
year 1681, that the town^ooundl should consist of fourteen 
resident merchants and seven trades ; the Court holding that 

* Smollett and others o. Buntein and othera, 19th Fetiruar^ 1730; 
Cnig^e and Stewart's Appeal Caaea, L p. SS. 

* Anderson and others, 19th Nov, 1748 ; Kilk. p. 110. 



RESIDENCE. BAILIES. 815 

the provost should be supemumen^ i^bove the twenty-one 
members of the town-council ^ 

With respea to biailies, however^ the ride of the 9cis re- 
qiaring recddenoe in those to be elected to thatoffice is still in 
force. In the case of Wic)c, it was decided, that only those 
who were residenters could be elected bailies ^ A number 
of years after wards, a case came from the borough of AB/»tru-» 
tber Easter, where the bailies are chosen by a poll of the 
whole burgesses out of a leet of nine, fumi^ed by the three 
old bailies ; and the treasurer is chosen in the same way out 
of a leet of three,, furnished by the dd treasurer. It was 
objeated and admitted, that a non-resident person had been 
put into the leet of nine ; but this individual was not one of 
those actually elected bailies. On the ground of this objec^ 
ticm, however, the Court reduced not only the election of 
bailies, but the whole election of magistrates and council for 
that year. The view which seemed to prevail with the 
Court was, that if one disqualified person may be admitted 
on the leet, so may a greater number ; and thus no more' 
than three qualified individuals may be left for election'. 
The judgment, however, was reversed on appeal ^ ; but in so 
far as can be collected from the appeal cases, and from the 
genaral understanding of the law on the subject at that time, 
particularly as shown by a case decided in the House of 
I^rds a few days afterwards, there seems no reason to sup- 
pose that the reversal was intended to affect the general rule, 

* Trades of Burntisland v. the Magistrates, 15th December 1752 ; £|. 
chies Burgh Royal, No. 37> 

* Anderson, jupro. 

' Tennant and Gray v. Johnstone &. others, 23d February 1785 ; Fac. 
and Hailes, p. 967. 

^ 28th April 1785. It is sUted in the FoL Diet, vol iii. p. 101, and in 

Morison*s Diet., that the reversal was es parte ; but there are appeal 

cases for both parties in the Advocate*s Library. Appeal Cases 1785-7) 

No. 15. 

2 



816 OF THE ELECTION OF MAGISTRATES. 

that ncm-residence is a disqualification with respect to the 
office of a bailie. The appellants did not urge, in very strong 
terms, the negative of this rule ; but they maintained, that, 
even if the general doctrine were conceded, it did not follow 
that no per^n could be put upon the leet who was not resi> 
dent ; and they pressed the hardship of disfranchising the 
borough, merely because a single error occurred in the leet, 
from which a part of the magistracy was selected. In a case 
from the borough of Nairn, decided a few days afterwards by 
the House of Lords, the necessity that the bailies and office- 
bearers should reside was conceded ; apd it was found that 
bailies and office-bearers, with the exception of the pnwost, 
must be elected from the resident burgesses ; and this con* 
cession was made, and judgment pronounced, altitough it ap- 
peared that the practice in the borough in question had not 
been entirely unifcnnki '. 

' Monro and others, appellants, o. Forbes and others, respondents, 
ad Maj 1786. The following account of the circumstances of thu case is 
taken from the appeal cases : — ^The royal borou^ of Nairn is of very 
ancient date. Its charter of erection does not exist ; and there does not 
exist any written set of this borough. In the year 1783, an action of de- 
clarator was raised at the instance of 182 burgesses and inhabitants, con- 
cluding that it should be found and declared, — * Imo, That the provost, 
' bailies, ofBce-bearers, and whole remanent coundliors of the said bui^gh 
' of AToim, shall, in all time coming, be annually elected, and chosen, 
*• agreeable to the original and antient usage of the said burgh, from 

* amongst the real burgesses, landholders, and inhabitants, resident jdth- 
' in the royalty, paying scot and lot, and bearing and perfbrmxng other 
« public burdens and services within the same. Sdb^ That the common 

* cleric of the said buxgh shall, in all time coming, be a notazy-public, le^ 

* gaily admitted, and capable of exercising the office and duty of a com- 
' mon deri: of a royal buxgh ; and that such common clerk shall not be 

* capable of enjoying the office of common clerk, and emoluments and per- 
' quisites thereof by himself, or his servants, and at the sazhe time of 
*' holding and exercising the office and jurisdiction of one of the magis. 
^ trates of the said buxgh.* 

The Magistrates and Toirn-Council, and several inhabitants and biirges- 
sea, were called as defenders to this action. 
The action having come before Lord Swinton, Ordinary, a proof was 



RESIDENCE. BAILIBS. S17 

In the preceding case of Anstruther^Easter^ howeyer^ it 
would appear that the Court thought, that, if an * inveterate 

led bj the ptmuen. This proof is too volumiiious to enter into here i 
bul its genenl import may be collected from the aTennente of both pet- 
tie% with respect to the facts which tliej respectiveljr alleged were esta- 
blisiied by it The deftnders (^pellants) contended (appellants* case, 
p. %,) that it was established, ' that residence was never required as a qua- 
*• UAcatlon either to an office-bearer, or to a councillor, in this borough ;* 
^ that thae were at all times non-residents in thecouncil received without 

* olijection ; and there is not the least foundation in the ussge fbr the idea 
^ of the Rspondents, that the minority of the council behoved to be resi- 

* dent' On the other hand, the pursuers, (respondents* case, p. 6), up- 
on the wliole of the evidence, submitted, *' that they had traced and esta- 

* Uished the constitution of the borou^ by the ancient ussge, and proved 
*• beyond doubt, that, within the memory of man, no person was ever 
*• diosen into the magistracy, who did not reside within the borough, till 

* 1771 : That, with respect to the councillors, though instances of recelv. 
*' ing one, two, or three non-residents, had occurred upon some political oc« 

* caiiona « yet a m^ority of mm'^fetidentt was never attempted to be intro- 

* dueed tin very lately : That the conclusion of their libel respecting the 

* town-clerk, required no evidence to support the proposition : That the 
*• town-derk of a royal borouf^ ou^t not to hold that office, and be a nuu 

* gistrate at the same time ; and that the duties of that office could not 
*' be discharged by a person who is not qualified as a notary-public, it be- 

* ing a prindpal part of the clerk's business to give and complete the in« 

* feftments of the burgage lands and tenements, to which none are compe- 
*• tent but notaries-public* 

The Court of Session pronounced the following interlocutor (1 0th July 
1784): * The Lords having advised the state of the process, writs pro- 
^ duoed, and testimonies of the witnesses adduced ; and having heard par- 
^ ties* procurators thereon, they find. That, by the constitution of the 
*' burg|h of iViotm, the council thereof must consist of a provost, three bai- 
*■ lies, and dean of guild, a treasurer, and nine councillors : Find and de- 

* clare, That it is not necessary that the provost be a resident burgess ; 
*• but find and declare. That the ffiree bailies, the dean of guild, and the 

* tresaurer, must all be residing burgesses ; and of the nine councillors, at 
' least fur must always be residing buigesses : And find and declare. That 
*• the town-derk, or any pereon officiating as his depute, must be a notazy 

* public, and that he shall be incapable of being elected a member of the 

* council of the said burgh, in any capacity, during his continuance in the 
^office of town-clerk or deputy: Find, That the expence of the defence 



S18 OF THE ELECTION OP MAGISTRATES. 

< uailge' to the ecmtrarj were established, residence ought not 
to be dcmsidered as indispensable in a bailie ; and in a recent 

*• kid out by the. d^enden in this cause, must be paid by the defenders 
'.themidltes, a&d csnnot be Ud on the (iinds of Use said bufgb.' ^ 

la a redatadng petitioD against this interlocutor^, the defenden aban- 
doned a great past Of their case. Thej sUted, < That, as to re«idence of 
^the haiUes, dean of guild, and treasurer, they never made any oljectton 
' thereto, nor to the town^lerk being a notary-pubUc, and declared in- 
*• oipi^le of being elected a member of the council of the buigh : That, by 
' the nature of the thing, and the general custom of Imrghs, the bailies 
'being the judges Ordinary within the burgh, for the daily administration 
( of justice, and for the preservation of the pulilic peace, ought to be con- 
' stantly or h^ltually resident. The office of dean of guild likewise marks 
' the retddeuee of this officer within the burgh.* 

They, then prayed for an altemtion of that part of the interlocutor re- 
lating to the ooondllors. The Court, however, adhered, 22d July 1784. 

An aiHpeal was brought from these interlocutors of LOth and Slst July, 
in so fiu: as they flssed the number of magistrates, and required tax cimn- 
dllors to be resident. The point of residence with respect to the offioe- 
bearers was thus abandoned. 

In the reasons of appeal it was maintained^ that, as there was no writ- 
ten set, so the usage varied with respect to the number of magistrates 
and counciUon, and there was no conclusion in the summons warranting 
their finding as to the number of office-bearers and councillors ; that if 
Qon-res|deAee wse a disqualification in a councillor, then no councillor 
Uable to that olyectitm should be admitted i if it was not a disqualifica- 
tion, then aU should be eligible, although non-resident : that the Court 
had no power to fix on any pMiicuiar mtmUr as required to reside ; that 
there is no law requiring residence in a councillor ; and that, by the evi- 
dence, councillors have been chosen from the burgesses at large, whether 
residing or not, indifierently. 

The respondents (pumiers), in their * Reasons,' contended, that, by the 
evidence, it appeared that the attempts to introduce into the council of 
the borough a m^ority of non-residents, were of very modem date ; and 
that althou^ it may have been found in particular cases that it is not 
necessary for aU the coundUors to be resident, it would require an er- 
press Ml, or a fmy i^wtUfote mage, to warrant a judgment that all the 
oounciUors of a borough, or even a minority of them, might be non-resi- 
dent. 

Judgment was pronounced on 3d May 178S, introducing into the inter- 
locutor of 10th July, certain variations, which cause the interlocutor of 
the Court of Session to stand thus : 



B¥SID£NC£. BAILIBS. S19 

itiamooe froBi the Toim ci Ediiibiiigh, . the Court, whilst 
they admitted the g^eral principle, that.re^eace was neoes* 
sary, held, by the narrowest majority, the averment relevant, 
that it was not required by the practice of the burgh ; and 
thej therefore allpwed, before answer, the parties who aver- 
red that practice to give in a condeseendence of the facta 
they offered to establish, and afterwards granted a proof of 
those facts^. 

* The Lords having advised the state of the process, writs produced, 
' and festimonies of the witnesses adduced, and having heard parties* pro- 
' curators thereon, they find that the bailies and office-bearers of the said 
' borough of Nairn, in all time coming, ought to be elected and chosen 
' from among the real and resident burgesses thereoJ^ but they do not 

* find that such residence is a necessary qualification of the persons to be 

* elected provost, or other councillors of the said borough, except the 
' magistrates aforesaid (i e. the bailies and office-bearers), and find and 
^ declare, that-the common derk, or any person officiating as his deputy, 

* must be a notary-public, and that he shall be incapable of holding the 
*• said office of common clerk, and, at the same time, of holding the office 

* of one of tHe magistrates of the said borough : Find, That the expence 
' of the defience laid out by the defenders in this cause, must be paid by 

* the defenders themsdves, and cannot be laid on the funds of the said 
*buxgh/ 

' Mr Bobert Anderson was elected one of the bailies of Edinburgh, at 
Michaelmas IAI7. At this period he resided in Broughton Place, beyond 
the bounds of the royalty of Edinburgh. He held shares in the Commer. 
cial BayH^g Company, and in the Hercules Insurance Company, and was 
a director of the former of these concerns, for three years previous to De* 
cember ISld, and again became a director iu December 1817, but did not 
hold that situation at Michaelmas 1817* In a petition and complaint by 
Alexander Lawrie and others, against the whole Michaelmas election of 
magistrates and council in Edinburgh for the year I8I7, it was, inter oHoj 
objected to the election of Mr Anderson as bailie, that he neither resided 
nor carried on business within the royalty of the town, as was required 
by the statutes and decisions on that subject. The respondents stated In 
answer, that Mr Anderson was a partner of a private banking company, 
and had been till very lately, and now again had become, a director of that 
ertahlishment ; that a residence in Broughton Place was, on a £ur con. 
struction of the law, sufficient ; and *• that, by the practice of the buigh, 

* j[esidence within the royalty has never been required nor observed.' It 



820 OF THE SLECTtON Ot &f AGlStEATES. 

Tbe statutes are equally applicable to the treasurer and 
dean of guild fts to die bailies. la the preceding case of 



wai fiffther contended, that the statutes were in desuetude. Two of the 
Jttdgdi Were 6f opinion that the fiuts ahrtedy before the Court were suffi- 
delit to ertdiUA Uk olt}«!ti(m to tte eleetioB of Mr Andem»^ ^ 
annul the whole annual election. The other three Judges, howeves^ 
thought, that &rther inquiij ou|^t to be made into the practice of the 
burgh, in chooang persons as bailies, who ndther resided nor had a place 
of business within the royalty. The Court, therefore, on the lOth March 
1818, ' sppoint the respondents, before answer, to give in a pdnted and 
' articulate condescendence, in terms of the act of sederunt, of the focta 

* which they aver and ofier to prove relative to the practice of this buif^ 
<^ in regard to the necessity of the bailies residiag, or having a place of 
^ business, within the said burgh.* 

tn obedience to tliis mterlocutor, the respondents lodged a condescen- 
dence, in which they averred, that, within the last hundred yean, there 
had been fourteen instances in which persons had been chosen bailies, who 
neither resided nor had places of business within the burg^, and forty- 
five instances in which the persons elected had not resided witliin the 
burgh, but without averring, that, in those instances, they had not had 
places of business within the buigfa. Thereafter the following issues, 
along with several others, upon different points, were transmitted for trial, 
to the Jury Court : 

' VI. Whether, at the annual meeting for the election of magistrates, 
' it has been the practice, for forty years or upwards, to elect as bailies of 

* the city of Edinburgh, such persons only as actually reside, or have a 

* place of business within the royalty, ancient or extended, where they 
' actually transact business ? 

' VII. Whether there have been instances of persons having obtained 
^ the possession of a shop, cellar, house, or room, as a colourable place of 

* residence or business, for the purpose of qualifying themselves to be 
' elected as bailies of the said city ?* 

tJpon these issues, the following verdict was returned : * Find, upon 
' the siith issue, That, at the annual meeting for the election of magi- 
' strates, it has been the practice for forty years or upwards, to elect as 
*' bailies of the dty of Edinburgh, such persons as actually reside, or have 

* a place of business within the royalty, ancient or extended, where they 

* actually transact business, with the exception of ten instances hereto 

* annexed, of persons who were so elected, who did not actually rende, or 
*• hid not a place of business where they actually transacted bunness with- 

* in the royalty, ancient or extended,' viz. The ten instances were then 
adjoined. « Find, upon the seventh issue, That there have been instance 



HSSlOENCfi. COUNCILLORS. SSI 

Vfkkf the Court) *by consent of parties, found that the 

* dean of guild and treasurer should be residenters.^ In the 
case of Nairn, the necessity of the residence of these magi- 
strates was conceded in the House of Lords, and it was there 
found that they must be diosen from resident burgesses. 

The acts, however, mention qfflciars or ma^trates only 
Hence there is room for an implication, that it was not in- 
tended that residence should be essential in those to be elected 
councillors of a borough. Accordingly, the rule has been 
sanctioned by a long series of cases, that residence is not re- 
quisite in such persons, at least where it appears from the prac- 
tice of the particular borough that that quality has not 'been 
deemed essential ; and although at different times the Court 
have takeA up the idea that a minority or two-thirds of the 
oouncUIors should be residenters, or 'at least proprietora, it 
will be seen that this idea was corrected in the House of 
Lords, in one of the ktest instances. 

In the case of Wick, which was a declarator, and in which 
it does not appear that the set at practice of the borou^ re- 
quired residence in the councillors, the Court of Session, af- 
ter altering a judgment, which found that only residenters 
could be elected councillors, at last decided, although by the 
narrowest nuyority, ^ that the mofority of the councillors 
< ought to be residenters, or proprietors, though not residing ; 
^ but that, in making the majority, the bailies, dean of guild, 
^ and treasurer, ought to be numbered and included ^.^ In 
the subsequent case of Forres, which was also a declarator, the 
Court, with reference to the set of the borough, which does 
not require residence in its councillors, and to the practice of 

' of persons having obtained the posseflsion of a shop, cellar, house or 

* voom, as a colourable place of residence or business, for the purpose of 

* qualifying themselves to be elected as bailies of the city of Edinburgh.' 
Four instances since 1795 were then ac^oined. 

This verdict, in consequence of a compromise, never was appliedj 
Lawrie and others v. Magistrates of Edinburgh, 1818 and 1819. 
> Anderson and others, 13th June 1749 ; Kilk. p. 110. 

X 



J 

328 OF THE ELECTION OF MAGISTRATES. 

the borough, found, ' that there k no neoessity for the ooun^ 
< dllors ctf Forres tp be reaideiit burgesses ^^ In a com|daiiiC 
from the borough of linlitligow, the set of which does not 
reqiure reAdence in its oouncillor^, gainst the Section of 
three of the'eonndjlors ehos^A at the Uist elecdon,^ it was 
maintained by tke comphdQers, that these tbree pefsons had 
ceased to be vesidenters some years before their election ; to 
wluch.it was answered, that neither the public law, nor the 
oonstitutioD, noo: usage >of the borough, required residenoe in 
Goundlkm, and that the three peroons alluded to had been, 
on former occasions, and since their removing from the town, 
elected without <diallenge en. the part of the oomplainers. 
The Court, partly moved by the specialties of the case^ such 
as the possessory nature of the action, and conduct of the oom- 
plainers, and partly on general grounds, dismissed the com- 
phdnt '. In a complaint from the borough of SHrenny, the 
set of which does not require residence in its counci]lol:l^ 
it was averred, that the immemorial usage was to admit 
non-residenterii as councillors ; and the Court repelled an ob- 
jection to an election of two coonciUorB, that they were not 
residenters'. In a process of declarator already noticed from 

< Dunbsr and others v. Madeod and others, 7th Januaxy 1707 ; Fac 
* Andrew and others «# GiUee and others, S4th Jantniy 177> ; V^ snd 
Haika, p. 61& 

' Anderson and others v. Affleck and others, 4th March 17M. The fol- 
lowing is an outline of the circumstances of this case : In a complaint 
against an election of councillors for the borough of Kilremiy In Septem- 
ber 1784, at the instance of certain persons then voted out of theeoundl, 
it was objected to the election and vutes of the ekcfeoia, Ui; 'fhat two in- 
dividuals, Sir John Anttnither and Robert Fall, elected ooiuiQ]Iin% were 
not burgesses or inhabitants of the borough. Sd; That Sir John, at the 
time of his election as coundllor the preceding year, was a coundHor in 
various other boroughs condescended on, and Bobert Fall was, at the nme 
Ume, provost or bailie of Dunbar, and a councillor in other borou^ba. Si, 
That Bebert Fall was not elected a councillor at Michaelmas 1788» or snj 
of the three preceding years, and therefore was not entitled to vote in 
certain elections of individuals between Michadmaa 178S and Micfascll&iB 
^784 ; and that, although he had been elected for the jeais jareoedbg 



RESIDENCE. COUNCILLORS* 333 

Nairn, whkh has no written set, a voluminous proof was led, 
the import of wliich was said, by one party, to be, that, al- 
though a few instances of non-resident councillors had occur- 
red, yet a majority of non-residenters was never attempted to 
be introduced till very lately ; and, by the other party, that 
non-residenters were at all times received in council without ob- 
jection ; and the Court found, that, ^ of the nine councillors, 

1783, he as often forfeited by non-appeanmce and non-acceptance. 4(ft, 
That the vote of Robert Lowthian wai olyectionable, because he bad been 
elteted a eouneUluT in room of George Lowthian, who had resigned his of- 
fice of batUe^ which was incompetent, and contrary to the set of the bo- 
rough, which required three bailies, a treasurer, and eleven councillors ; 
and because it was not competent for the magistrates and councillors to 
receive the resignation of a bailie, who is elected by the burgesses at large. 
It was answered to the first ol^tion, that it was well known that Sir John 
Anstruther and Mr Fall were burgesses, as they had been councillors six 
or seven years, although there were no records of the admission of bur- 
gesses since 1724 ; and that residence was not necessary, as the objection 
had often been repelled, the set of the borough did not require it, and im- 
memorial custom was against it in this borough. To the second olgection, 
that there was no law or expediency preventing one person from being 
councillor in two boroughs at once. To the third objection, that it was a 
mere verbal criticism, as, although the word re-elect may not be found in 
the minutes, yet the equivalent word coniinve is to be found, and the name 
of Mr Fall is in the list of councillors fbr the following year, at the re. 
•pectiye elections. To the iburth olgection, that the election of Affleck 
did not take place at the annual election, or at any previous meeting ; 
and therefore could not be challenged by summary complaint 

The Court * sustain the objection to the vote of Robert Lowthian, as 
* improperly chosen on the 6th day of August 1784, when there was no 
^ vacancy of a coundllor ; and, therefore, that he could give 90 vote at 
^ the election of councillors on the 16th day of Sepiember 1784, until he 
' was re-elected that day ; but find, that, without his vote, there was a le- 
^ gal election of councillors on that day; repel all the objections made to 
' the whole of the election on the 16th of Sejptefber 1784 ; dismiss the pe- 
' titlon and complaint ; asMilEie the respondents, and decern ; and find the 
*' complikiera (^ipellants) liable in full costs of suit ; and ordain an account 
' thereof to be given in.* 

From this judgment an appeal was taken to the House of Lords, but 
the case was compromised. It is firom the statement of preceedings in 
the Court ^ Session given in the ^»peal ciises, that th« ^ount of this 
case is taken. 

x2 



^24 OF THE ELECTION OF MAGISTRATES. 

* at least sut must always be redding burgesses ^ C but, on 
i^peal, the House of Lords found generally, that it was not 
necessary that the councillors should be chosen from residing^ 
burgesses'. 

' It appears to be held, with respect to those individuals 
elected to fill those offices of the borough which must be hdd 
by residenters of the town, that the proper exercise of the or- 
dinary calling of those individuals at a place of business with- 
in the borough, will constitute residence, althou^ the dwel- 
ling-house may be beyond its bounds. 

In a very late case, from the burgh of Selkirk^ the Court 
had under their view the question, how far previaug residence 
is necessary, in order to be admitted a member of a craft. 
Certain persons who were sons of freemen, or had served an 
appr^iticeship in Selkirk, had been in the habit of spending 
generally the greater part of the year in other places^ and 
returning for longer or shorter periods to Sdldrk ; and two 
of them had resided constantly in Edinburgh for two or three 
years. These persons applied for admission to the Incorpo- 
ration of Hammermen on the very day of the election of a 
deacon for that incorporation, and, on bong admitted, gava 
their votes in that election. These votes were objected •to on 
the ground of non-residence. The seal of cause did not ooiv 
tain any clause requiring residence, and seemed to contem- 
plate the possibility of non-resident freemen, by providing, 
that every freeman who should not reside, should pay a cer- 
tain sum quarterly. The Court, in the special drcnmstanoes 
of this case, repelled * the objection of non-residence, as al- 
^ l^;ed, to the admission and votes' of the persons objected 
to. The judges seemed to think, that it would be very in- 
expedient to hold, that in no case could a person, qualified 
in other respects, be admitted to a craft, if he happened to 

* inth Jolj 1784. 

« Hunro vyljptlienv. Forbes sad others^ Sd BCay 1736, «^pr«» p. 916. 



RESIDENCE. ADMISSION. 325 

S 

have resided out of the town for some time previous to his 
application ; but, at the same time, they were unwilling that 
this case should be held as a precedent for other cases, unless 

in similar circumstances ^ 

* 

> Hope and others v. Magistnies of Selkirk, 2d June 1827 ; Shaw. The 
following are notes of what fell from the judges on this occasion. — Lord 
denlee, 1 incline to sustain the plea, that the objection is not good against 
one for the first time claiming admission. If the seal of cause had required 
residence, there might have been a difficulty. But it contemplates non-re,- 
sidence of fVeemen, and makes a distinction between resident and non-re- 
sident freemen. There is a reference to the possibility of freemen ez\joy- 
ing their privileges without residence. There might, indeed, be an aban- 
donment for a long time, but that is not to apply to the case of a first ap- 
plication. I can*t transgress till I am admitted. Every mason can hard- 
ly be bound to reside in such a town as Selkirk.— iLorrf PUmiBif, I concur 
in all tha^ has been said.— Zorcf AOawt^. This is a case of difficulty, but 
I go much into Lord Glenlee*s view. Suppose a man lias served aii ap- 
prenUceship, and wishes to improve himself^ and goes away from the bo- 
rough, and then returns, it would be a strong measure to deny such a one 
admission when he asks it But the difficulty is this : the old statutes re- 
quire residence for corporate privileges. Those who ask those privileges 
must give their services to the borough ; and there is a difficulty in allow- 
ing persons not resident to claim privileges. These statutes have not been 
relaxed, except with respect to the provost I am not prepared to say, 
that there is any general rule making residence not necessaxy, in appHeO' 
ikmMfw admMisn^ If persons come one day and go the next, this is not a 
compliance with the acts. In short, this is a case of difficulty.— Lor(/«/««. 
Hee-Cierk, This is a new point The case of Dobson (1803, not reported) 
is the only similar one. The other cases were different, because there per- 
sons aheadif admiied freemen came forward merely to vote, although non'^ 
mkknL But, suppose persons qualified in all other respects, come ibr* 
ward, for the first time, to ask admission, in respect of their other quali* 
fications; to lay down the rule, that i^ at this time, they are non-mident, 
they cannot obtain what they ask, would go to narrow admission to thou- 
sands of corporatimis. It would amount to this, you must be a journey- 
man ; you must continue in a state of bondage as a journeyman. I think 
the illustration of Lord AUoway, as to one going away to improve himself 
exoellent The case of Dobson is the only one similar in its drcumatances 
to the present, and seems a case where the objection was taken, but 
the person there had been twenty years absent, and was brought forward 
for a particular occasion. But is this to be considered as a deliberate judg- 



326 OF THE ELfiCTIOX OF MAGISTRATES. 

In this case it was held, that where one has just been ad- 
mitted a member of any incorporation, and an electkm pomes 
on immMaiehfj there can be no reason for denying him a 
light to Tote in virtue of the same qualifications which were 
sufficient to gain him admission ; for if his non-residence has 
not been of siich a character as to debar him from the one 
privilege, neither ought it to deprive him of the other. But, 
if some time intervenes between the admission and the elec- 
tion, then there will be room for the inquiry, how far his re- 
sidence in the interval has been such as to entitle him to vote ; 
and this question may occur both with respect to the burgesses 
at largej in those boroughs where they have a voice in the elec- 
tion of magistrates or councillors; and with respect to the 
tiembers of subordinate corporations. With respect to the 
former, it is reasonable that one who wishes to exercise the 
rights of his status should confer that general benefit on the 
community by his presence, which was expected from him 
when he was admitted. There is, indeed, reason to believe, 
that, by the most ancient constitution of the boroughs of Soot- 
land, residence was not required to preserve corpcx'ate privi- 
leges ; but at that period, burgess-ship appears to have consist- 
ed in the possession of burgh property ; and its privil^es ap- 
pear to have been enjoyed by such proprietors, even when 
non-resident ^. C Such a rule would therefore not be appli- 

mentf that no person who has, previous to application, been non-resident, 
can be admitted ? If, then, the persons that he d^ected to were entitled 
to be admitted, theyare not to be cut off from their votes. The qiieslioii 
would be different asto imuK Michaelmas election. That would be a differ 
lent case from theb claiming votes, when, they have only been admitted in 
the morning. In the borough of Selkirk there is no suflSdent employment 
for masons. — *• Repel objection of non-residence, as tJUgml in condeacen- 
doiees.*— Xertf GitfUee. I would not like to do any Uiing to make this case 
a inwBedent* 

Bee a case, afterwards mentioned, from Rutherglen in 1776» in which 
the Court approved of an act of council requiring a certun term of resi» 
dance before adndssioQ as a burgess; Urie, m/ni, p. Say, ^ m* note. 

* See this Bub{ect in the annexed HIstoriad Inquiry* See index. 



RESIDENCE. BURGESSES. 827 

cable to a pmod when the character of a burgess is acquir- 
ed without reference to the possession of borough property. 
With respect to the subordinate corporations of a borough, 
the view In which thdr exclusive privileges are defensible is, 
that they are intended as establishments, not merely for the 
benefit of the individuals composing them, but for the advan- 
tage of the whole community, of which they form parts, by 
consisting of a certain number of persons duly qualified to 
exercise the particular trades for which they were instituted. 
There is, therefore, an implied contract witfi the community 
at large, that the members compo^ng them shall fulfil the 
puiposes for which those minor corporations are intended, 
which cannot be done unless those members reside. 

One or two cases have occurred as to the necessity of resi- 
dence in the burgesses at large, in order to entitle them to 
the privilege of voting in elections of magistrates and coun- 
cillors, in those towns in which, by the constitutions, they 
have a voice in such elections. 

This point occurred in a case from Wick, the charter of 
erection of which ^ve the right of voting ^ liberis inhabitant 
* tibus et burgensibus dicti burgi.^ A declarator was brought 
to have it found, that none but residenters should have this 
privily ; and the Court found, * that, in the election of 
^ provost and bailies, those only who are resident burgesses, 
^ or burgesses who are heritors having property in the buigh, 
^ and none other, are entitled to be electors ^J* In this case, 
besides actual residenters, heritors were found to have the 
right of voting, and thus property was made a compensation 
for the want of residence. But in a subsequent case from 
Rutherglen, the Court approved of an act of the town-coun- 
cil, requiring residence as an essential qualification in voting 
in the leeting or choice of office-bearers, although, in so far as 

^ Anderson and others, 19th November 1748; Kilk* p. 110. 

2 



3S8 OF THE ELECTION OF MAOISTRATES. 

« 

raqsected the inoorpomted burgesses, it was substantially ad- 
mitted that neith^ the set nor practice required residence '. 



' The drcumstances of this case were as follows : 
Bjthesetof the burgh of RuthergWnit is provided, that ^ ilk ane of the 
*' three deaconriea, viz. of the smiths, weavera, and masons shall fgt9e in a 

* list of six persons, and the fourth deaconrie of taylors a list of four per- 

* sons, and the remanent bui^gesses, inhabitants within the said burgh, and 

* its territories, bearing scot and lot within the same, shall give in a list of 
^ eight persons to the provost and bailies of the said buigfa, who shall 
*• chuse three out of the three several sizes, and two out of the four, and 

* four out of the eight, which maketh up the number of fifteen persons^ 
^ who are to be of the common council of the said buTgh.' 

In the year 17&d, the magistrates and council passed an act, that ' no 
' person otherwise having a right to vote in the election of magtstntes, 

* or other office-bearers of the borough, but standing in debt to the town, 
*" for anj cause, be allowed to vote in the said election, unless upon pajr 
*• ment to the town-treasurer of what is so indebted bj them, at least forty. 

* eight hours before the said elections in which they shall claim to vote.* 

' Immediately before the Michaelmas election in the year 1774, this act 
of council was prescinded by another act of the magistrates and councillorB. 
On the 30th September 1776, a third act of council was passed, decla- 
ring that, ' in all time coming, no buigess or tradesman shall have any 

* vote or voice whatever in the leeting or choice of the magistrates or 

* other office-bearers within this burgh, unless they actually live and. re- 
^ side within the royalty of the burgh ; nor shall it lie lawful for any ma- 
*• gistrate, in time coming, to enter any person a buigess of this buigh, 
' imless, previous to his admission, he has, with his &niily, lived within 
' the royalty four months at least ; or if such person have no fiunily, ud- 

* less he hiss lived year and day within the royalty. And also, that the 

* absence of any person from this bur^^ for the space of year and day to- 

* gether, shall have the effect to preclude him from being entitled to be 

* entered a burgess, until he reside the foresaid periods in the events above 
< mentioned ; but, in the event of his having been a biurgess formerly, 
' four months residence with his ikmily, or six months if none, shall agmin* 
' entitle him to all the privileges of a burgess.* 

An action of reduction and declarator was brought by certain penons, 
then councillors of the borough, for themselves, and in the name and 
behalf of the other burgesses, concluding tluit the two Ust mentioned of 
these three acts of council should be' set ande, and that it should be de- 
clared that any one should be admitted buigess, on paying the foes and 
taking the oath, and that every one so admitted should be entitled, alter 
tSx weeks* residence, to vote and be voted upon. 



RESIDEXe£. ELECTION OF DEACON. S89 

With respect to the freemen of inferior incorpovations, it 
has been decided, in a great variety of instances, that residence 
is necessary to entitle them to vote in their own private dec- 
tions. Questions may, indeed, occur as to what shall be hdd 

Lord Covington, Ordinary, made ayizandum to the Court with the 
case on informationfl. 

With respect to the act readading the previous act, which excluded 
town debtors from voting, the pursuers pleaded, that the principle, upon 
which the convention, in 1689, excluded town pensioners, applied, with 
still greater force, to town debtors, since they were still more immediate- 
ly dependent on those who had the power of instantly enforcing the claims 
of the town against them. 

With respect to the act requiring residence, it was argued, that, by the 
previous constitution of the borou^, as established by usage, any one 
might be admitted a buigess on payment of the fees, and taking the bur- 
gess oath ; but that no burgess could elect, or be elected, until he had re- 
sided six weeks, and thereby acquired a domicil ; and that no unincor- 
porated burgess could exercise his privileges unless actually resident at 
the time, whilst members of the several corporations had always been al- 
lowed to vote, although not actually resident at the time. It was main- 
tained to be at variance with the good of the burgh to establish any fiuther 
restriction such as those in the act, which would deter others from settling 
in the buigli, and lessen the inducement of non-resident members to liave 
any fiurther connection with it. 

The defenders maintained, with respect to the act admitting the town 
debtorp, that, although town-pensioners are disqualified as holding their 
pensions at the will of the council, the mere circumstance of being indebt. 
ed to the town cannot constitute a legal incapacity. 

As to the other act, under reduction, it was stated, that the set of the 
buxgh clearly required residence, as to the unincorporated burgesses, to en- 
title them to vote ; but it was admitted, that although there was no rea- 
son to suppose the intention different as to the members of corporations, 
yet that these were in the habit of voting although not resident. It was 
Mud to be highly inexpedient to admit all applicants for burgess-ship, al- 
though perfectly unknown ; or to allow a residence of six weeks to con- 
fer the privil^e of voting, because, in that way, strangers, who had no 
permanent intention of residence, would be introduced, to interfere in the 
elections. It was fiurther stated there was no connection between the re^ 
quisites for domicil, and those for the exercise of buxgess-ship^ and that 
the period of six weeks had been fixed on by the 'pursuers in a manner 
quite arbitrary. 

The Court assoilzied the defenders from the actioD»^Urie and others 



380 OF THE ELECTION OF MAGiSTEATES. 



in partmdar au»6 ; but tbe genend principle 
ibiU it is na o ciwar y to give freemai a right 6f voting, seems 
fixed. .Tbtis^it w«ft held in two instanoes, die one from Inver- 
kfMiiilg -attd • the odier ficom Brediin, that noii-residents 
ooidd not TUfee in die decdm of a de^bon \ Another case 
occurred, in which tbe Court sustained an act of an inoorpo- 
Tation of Rutherglen, providing that residence shonld be ne- 
cessary to vote in all their elections, although the set did not 
require it, and the practice was alleged to be contrary'. 

ck tba Msglitntes mnd a part of the Couiidl of Euthergkn, July 1776 ; 
Senion Papers, shortly reported by Tait, p. 404, Brown's Supt; to Mor. 
as to Town Bditors only. 

^ Case of Inveikttthing, 1761, Tait, p. 400 ; Brown's Sup.\oL v. « An* 
< dcracm had been duly elected a burgess of Invericeithing and freeman of the 

* Inoorparatlon of BazterSi But haTing removed his resideaoe to Dunfisrm- 

* line, anno 1732, and acted as ft«eman there, and afterwards returned to 

* Invericiithing, not with an honest view to iteslde there, but to ^ve hit 
' vote at the election of a deacon of baxters, after which he returned to 

* DunfermUne, and being objected to on account of non-reridence, the 

* Lords, 1761, sustained the oljecUon.' 

The following case came from Brediin. ^ The Lords dissUowed the 
*' votes of all those who were not residenters within the bu^^ thouf^ 
^ several of them resided dose by it in a viUage a few yards only from it 
' without the royalty, but had been in use to practise within the borough 

* without chall^ge.' Case of Brachin, 1774* Tait, p. 401. Brown's Siipt 
This case ik thus reported, by Lord Hailes, in general tennfr ' Kon*re- 
*■ sidents, minors, members of the guildry, town-officers, penakmen of the 
< borough, cannot be received to vote in the election of deacons.' Hut- 
ton and others «. Knox and others, 23d. July 1774 ; Hailes, p. 588. 

* This case was, in a great measure, a corollary from the case of Urie 
from the same borou|^ already mentioned, p. 327, ei mq- note. 

On the 12th September 1776» a few days previous to the act of the 
town-coundl as to residence, the Corporation of Masons and Wiijghts of 
Ruiherglen, following tiie example of the other corporations, passed an 
act, *' That no person, who resides without the territories of the borough, 

* shall have a vote in any of thdr elections in time coming.' 

Of this act, a reduction was .brought by certain non-resident members 
of the corporation, and also by some other members. Lord Covington, 
Ordinary, at first decerned in terms of the lihldt; but the Court having 
afterwards pronounced judgment, sustaining the town-council act, his 
Locdship afterwards altered his inteilocutor and asMnlzied the defendflfs ; 



BERIDENCE. ELECTION OF DEACON. SSI 
The absUnact point as to the admifwibility of noiMresidaiters 

on tills ground, amongst others, as the second interlocutor bears, ' That 

* an act of the town-council. In many respects sunilar to this, excluding 

* non-reaidenteFS from a voice in their elections, has received tlie appro- 
' bation of the Court of Session.* 

In a petition to the Court against ttiis latter interlocutor, it was stated, 
that the set did not require residence in making up the corporation leeta ; 
and % the immemorial practice of the borough, non-resident members of 
the Corporation of Masons and Wrights vote equally with those who are 
resident,— a practice which it was said was peculiarly necessary in regard 
to that corporation, the members of it being generally scattered through 
dififerent parts of thecountty, working to those who employ them, as there 
was only business for a very few within the burgh itself of which prac- 
tice a distinct offer of proof was made. It was farther argued, that those 
admitted before the date of the act of the corporation had acquired, by 
the constitution of the borough, a jut qucBsUum to the privileges of the 
trade, whether resident or not, of wliich no act of the corporation could 
deprive them. 

The Court, however, adhered to the interlocutor. Shaw and others, 
19th June 1777 ; Session Papers. 

The following opinions in this case, not before published, are from Lord 
Hailee*s Notes. 

^ Hailes. The regulation sought to be reduced, in effect establishes 
*• what is the law as to burghs, from leges bwrgorwn downwards. It has al- 
^ ways been understood that the members of a corporation, or company, 

* must reside within the burgh. It is said that the set of Rutherglen is 
different, and that practice makes the constitution in burghs. I am yet 

* to learn that the set says any thing on the subject If it did, I should 
' not much regard it unless in poueatorio* Practice against law cannot 

* make law ; and so the Court has frequently found. At Linlithgow, it was 
' the inveterate practice to receive the son of a freeman into his Other's 
^ trade, and even the husband of tlie daughter of a freeman, and thus a 
^ butcher, the son or son-in-law of a tailor, was received as a tailor, with* 
' out any fiurther inquiry. But the Court disregarded this, as it did the 
' inveterate practice of Brechin, where a man could be of more companiea 
' than one, and the Court has never pronounced a different judgment It 

* is said that the Court found non-residence no objection as to the skinners 
« ol Edinburgh ; but that decision is misunderstood. It was admitted, that 
^ the skinners resided in the neighbourhood of Edinburgh, and had tL forum 
' established in Edinburgh. It was also admitted, that they could notoc* 
' cupy their trade in Edinburgli, because it was a nuisance, and because 

* there was no water sufficient to supply them. The Court therelbie 



9S8 OF THE ELECTION OF MACIISTRATES. 



to voce in the eIecti<Mi of a deacon, was again decided in the 

ftund that men who could not reside within burgh, were not bound 
to reside. A diffisrent judgment would have annihilated the company ; 
but If one of those Bkinners had taken up his residence at UnUthgow, 
and anothe^at Haddington, the Court would not have found that they 
could still be fineemen sUnnera of £dinbul|^ It is said that the maaons 
and Wrights of Rutheiglen cannot find business there ; if that is th^ 
case, it is the best reason imsginable for their settling in Glasgow, &c. 
where they can.' 

* Manhoddo, By the set and practice the pursuers had a right to vote. 
The^iuestion is. Whether they can be deprived of the right which thej 
had acquired ? I doubt both as to the expediency and the legality of sU 
tering the set of a buigh. But supposing the alteration both expedient 
and legal, I cannot think that any member can be deprived of his fiiee- 
hold by such an act The r^ulations in Brechin were properly appeal, 
ed to, where the line between past and future was well drawn. 

* Bnu(fUUL It does not appear that the set allowed non-residenc& Al- 
though it has expressly excluded non-resident hmtgetftt^ it does not iU- 
low that the Irotfat were left at liberty to reside or not to reside. The set 
\m silent as to the members of corporations, because it was not supposed 
that members of a corporation could be non-resident, and yet vote. The 
act, brought under challenge, deprives no man of his right, for it Is de^ 
daratory of como^on law, and is founded on reason, and the nature of 
the thing. It is absurd to say that a man, by once becoming a member 
of an Incorporation, continues so fbr ever, although he should change 
his place of rea&dence. A person, occasionally employed to workput of 
the bui^, does not chsnge his residence, for his fionily remains wtnae it 
did,* 

* Covington. The Court did right in not allowing the r^uhition to take 
place, when made at an improper time; but if the reguIatioQ is right in 
itsell^ it may be supported in time coming. As to the distinction souf^t 
to be made between those who have been already admitted memberB, 
and those who may hereafter be admitted, it is without just ground, 
and in the former case from Rutheiglen was disregarded.* 

On the 19th June 1777i *" The Lords found that the act, concemli^ 
< non-reddents, was proper, and therefore assoilasied;* adhering to Lord 
Covington*s interlocutor. 

In another case firom Rutherglen, one Lindsay, who appears to have 
been admitted a member of the Incoipoimdon of Taflofs of Ruthei!]^eii, 
and to have resided there for some years, had removed from that town, 
and afterwards brought his &mily back again to Rutheiglen, and jdaeel 
them in a house there, for which, as he sUeged, he paid rent, but whieii, 



TBAD£ B£QUIRIN6-NaN-B£SIDSNC£. 388 



negative in a case from Ein^om ^ ; and, indeed, it aeeoiB to 
have been so determined, as often as it has occurred. 

The necessity of residence seems to apply even aJbrHori 
to the person elected deacon ; since, besides the general rule 
applicable to all the members of the trade, the duties of his 
<rfSoe require his presence. The election of a person as dea- 
con of a corporation of Edinburgh was set aside, because at 
the time of his appointment he was resident in Canongate^ 
and a deacon there also '. 

Where, however, the nature of the particular trade of 
any subordinate corporation of a borough, cannot be car. 
ried on within the bounds of the town, and where, in oons&- 

as the other party atated, waa merely the houae of a relation. He theti 
went to Glaagow, and worked with a maater tailor. For the hotiae la 
which he lived there he paid rent, but thia waa, aa he alleged, becauae he 
had taken the houae before hia setum to Rutheiglen. He went every 
Saturday evening to hia fiunily, and remained till Monday morning ; and, 
aa he himaelf fiurther averred, waa alwaya at Rutherglen when he could 
get work. A reference waa made to hia oath of aomeof the diaputed Acts, 
and he waa ordered to attend at the bar ; but I have not fbund whether 
he waa examined. The Court, however, decided, that hia realdence waa 
not auch aa entitkd him to the privilegea of the incorporation of tailora of 
Rutherglen in leeting for coundllora* Tumbull and othera v> Beid, 
Undaay, and othera, 1779; Seaaion Papera. 

> Lamb 0. High, 29th July 1789 ; Fac. 

* Miller, a burgeea of Edinburgh, and freeman glazier, had his leai* 
den«e at the head of the Canongate, without the limita of the royalty. 
He had for a courae of yeara exerciaed all the dutiea, and eiyoyed all the 
rjghta, of hia trade in the way of ordinary buaineaa, and at electiona. He 
waa elected deacon in 1703, but, at thia time, beaidea being reaident in Ca- 
nongate^ he waa deacon of a corporation, and eivjoyed aeveral other officea 
there. Hia election in Edinburgh waa aet aaide, and lua competitor, al- 
thov^ elected with a amaller number of votea, preferred. NlchoUon o. Mil- 
ler, gbuder, 1764 ; Tait, p« 401 ; Brown*8 Supt. I find that the Court, by 
their flrat interlocutor, although they aet aaide Miller*a election, refuaed 
to auatain that of Nicholaon, and that both partiea petitioned againat the 
judgment From the acount given by Tait, thia interlocutor appeara to 
have been altered aa to Nicholaon. The magiatratea had preferred Ni» 
choiaon, without aending the leet back to the corporation. There waa 
indeed, no Ume to do thia before the regular day fi>r receiving the dea» 
cona. 



V. 



884 OP TH£ ELECTION OF MAOI8TAATE8. 

quenoe, any freenan of that body lives beyond dxiee bounds 
at some place in the Tidnity where the craft can be ezerdaed, 
and dispoaea of his goods within the tawtky this is held to be 
sudi a reiidenoe as the case admits of, and to endtle to the 
privilq^es of the craft. This doctrine received the sanctJoa 
of the Court in two questions relating to the sldnnos of Edin- 
burgh, who require the vicinity of a run of water for the 
exerdse of their trade of dressing leather. 

The first of these was a dedarator, brought by the skin- 
ners and furriers of Edinburgh, concluding, that the sidii- 
ners, from the nature of their occupation, should be efxempted 
from actual residence, and should be allowed to rende on the 
Wat^ of Leith, and should, notwithstanding, enjoy the pri- 
vileges of thdr craft in dections of deacons and other mat- 
ters. At the same time, to sc^ten the oppontion to this ac- 
ticMi, they entered into an obligatimi to continue subject to 
the jurisdiction of the town of Edinburgh, and to be liable 
to the bujegal taxations^ The dedarator was, however, op- 
posed by the magistrates ; but .the Court decerned in terms 
of the h7)d \ 

' ThU case is detailed in the Sesrion Papen, on botli tides, in tfce <»e 
of Hunter Bliir o. Phin, Slat January I7SI. The foXhw\ng o|rfnloaa, not 
befine published, taken firom Lord Hailes's notes, appear to have been tboae 
delivered in this cas& It wiU be observed, howerer, ftom Lord Hailes*8 
<^)inion, tliat he seems to iiave considered the action to have been brought 
ftt the instance of the nuigistrates. There may, peihaps, have been mu- 
tual dedaraton.— Magistrates of Edinburgh «. Corporation of Skinnera, 
-eth December I7e7« 

*• Hattet. The magistrates admit that there is not room fbr the skinners 

* within the liberties, and that, if there were, they could not have water 

* ^or exercising their trades otherwise tlian by a grant of a jnivale pipe of 

* water to each of them { this satisfies me that the sktnnen must be as- 

* soilsied from the dedantor : neither acts of Parliament, nor seals of 
^ cause, nor Lord Ilay*s decreet-arUtral, can require impostibiUties. 

* PUfimr. I agree in the general point, tliat freemen must reside within 

* the liberties, but here there is a necessity that skinnen reside without 

* the liberties, if not for the ette, at least lor the Asne euey of the coipors- 
« tlott. Suppose that a machine were invented Ibr the benefit of a tr»le, 



TRADE BEQUIBIKG NON-RESI PENCE. SS6 



\ 



/' 



In the second of these cases^ a p^rsoa bad been elected 
deacon of the skinners, wha resided and carried oo^^busineM 

^ and that there were no place within the buigh where it could be erected, 
< certainly it might he erected without the buxgh. Here the caae standa 

* thus. There are ei^teen non-reaidentere and fifteen reaidenter^ It 
' is said the reaidenterB may carry on the buaineas of the incorponitioii ; 

* that iB» they who are nominal skinnera ahall do the whole buamesa^ but 
' real skinners shall be excluded. I cannot make a difierence from the 
^ privil^e of voting in a corporation, and the jirivilege of selling the woric 

* The Uws as to buzghs have been liberally interpreted ; hence, a proTOSt 
^ and coui^lllora may be persons not residing. If the ofcliuien neither 
' come within the town, nor bring their woric wi^iin the town, they take 
' no benefit firom the corporation, but if they do &ther one or other, their 
' persons may be attached and their goods may be seized, so that there 

* wiU be no difikulty in leyying the stent, or other public burdens.^iV. B 
*• This argument of Lord Fitfour was deliTered last in order, he. being re- 
^piorter.) 

*• Bitrjarg proposed that there should be sonje criteric n finr distinguish. 
« ing skinners in the country from those belonging to the corporation, aa 
*• that all skinners belonging to the corporation should have shops within 
« the buigh. 

^ Gm^kmrtsim, Thoe can be no dearer propoaition than .that maintain* 
' ed by the magistratea, liut a burgess must reaide if he means to have 
^ privileges aa a burgess The question, whether the skinnera are to be 
*' esemp^ from the general rule, is that before us. Although I am 
' moved by the argumenta of eiqiedieiicy, yet I think that no dedslon is 
' good which proceeds upon expediency aUme. The skinners may work 

* their skins without the bur|^ but their dwelling-plaoe must be within 
« the buxj^ 

. ^ MonMdo. This is a question of some difficulty, not as to law, but aa 
« to derogating from the law, in respect of the nature of %\Ab trade, and 

* the practice of those who exercise it. The privilege of buigess-ahip is ter« 
^.zitoriaL AiryifiHistfi^eirfteiyi^^tem AoAa^one who haaalmzgag^ 

' ment If non-reaidenta in a hvxf^ had the privil^gaa of buigesa-ahip, 
^ great inconvei^ieQcea would thence arisen The dutiea of watching and 
*' warding, 4tc!i must be perfiirmed by reaiding buigessea, and these axe the 
' great duties, attending on burgage holdings. Tlie IMth act FarL iSth 
« Jamea VI., goes so fiur as not to allow craftameir to rende in the sub- 

* urbs; add to this, the acts of Convention. There is no exoepticm as to 
*• Edinburglb. The same rule is establiahed by acto of council, dedsions 

* in controverted elections, and decirions of this Court Here the ques- 
\ tion is as to this pertacular corporation \ if the m»i«xtsidiDg buigesaes 



SS6 OF THE ELECTEOy OF MAGISTRATES. 

at Canonmflk, and an objecticMiy founded on that circum- 
■tanoe, was repelled K 

ctntiol tote, they camuA sdl u freemen. Skinneta ouinot exercise their 
tlsde in Edinburgh, as they can do at the Water of Leith. Many akinners 
do defl»eto TeAde without the burgfa» I cannot deprire so many men of 
their priTilegeSk 

* Coabiomu I am deai^ as to the general rule, and dear that there Is no 
exception as to tlie town of Edinbux]^, but I thinlc that skinners are ex- 
cepted $ it is not merely more convenient fbr them to have their resi- 
dence without tiie town s necessity obliges them to carry on their trade 
witliout the town. This necessity is increased by the deed of the Ma- 
gistntesy who have drained the North Loch. BldnnerB residing wtthont 
the town iiave acted as burgesses ; it would be a strong step to finfat 
them of their iiirthright. It will not be quite so easy to levy stent from 
them ; yet still that is not inextricable. As tlie skinners have agreed to 
fix a>brum, the magistrates may bring an action for payment agunst 
them befiire the town's court 

* •Ikffiof-CMfc. The only argument fbr the skinners is a strong argu- 
ment from conveniency. Were I sitting as a member of the Iq^idature, 
I could give redress to the skixmers, but as a judge I have no power. 
Even if I saw a necessity for the skinners residing without the burgh, 
my diflkul^ would not be obviaM as to want of power* The sUanen 
may find water witlun the royalty ; tliey may carry on their worfca at 
the Water of Leith, though they themselves re^de in Edinburgh. 

^ KttmeL Of the opinion last ddivered. Could wish it were otherwise, 
but we cannot, as judges, alter the law. 

* foMM. The question is, Whether do sklimen redde wllhont thetown . 
firom conveniency or finom necessity P The ofe* of giving thiem pqpea of 
water is not seriously made. This would be a common nuisanca 8cir. 
city of water often occurs in £dinbui]§^ ; wliat would become of the sidii- 
ners then ? If they have not a constant supply of water, there is an end 
put to tlieir trade ; tliey cannot stop their trade, and resume it st plea- 
sure. It is unreasonable to demand that artisans riioald redde in a place 
difierent fhmi that where their trade is carried on. 

* Auehinkek. The acts of PafUament upon which the magistrates Ibund 
are rational, but thdr spirit must be attended to. The acts are ix Ae 
encouraging of trade and manufiurtures in the diflhrent places appro* 

«prialed 

* The judgment of the Court was, * Find that residence is not neoes- 
*' sary for a person to be chosen deacon of the skinners ; and therelbre re- 
' pel the objection,' Ac. Lawrie e. Magistrates of Edinburgh, eth June 
1818 ; Session Papers. 3 



TRA1>£ REQUIRING RESIDENCE. 3S7 

In another case, also relating to the waulkers of Edin- 
burgh) the same pindple seems to have contributed to a con- 
siderable extent to the judgment of the Ck>urt. A member 
of that craft, who resided at the village of Colinton, where 
he had the. benefit of water, and sent his goods for sale to 
Edinbui^h, where he had a warehouse, was elected deacon of 
the corporation, and his election was sustained by the Court. 
According to the report of the case, the decision was, in some 
measure, founded on the bonajides resulting from the prac- 
tice in regard to that trade^ and on the summary nature of 
the process, it being a complaint and not a declarator, which 
it was thought would have been necessary to overturn such 
a practice ^ Independently of specialties, the principle of 
the dedsion was a just one, and in perfect conformity with 
the other cases of the skinners. 

' It has been found, that tfie eldest son of a Scottish peer 
may be provost of a royal borough '. . 

*■ priated for them. In this view, I do not relish the defence of the ma- 
*• gistrates. The work, it is acknowledged, is as well carried on, and as 
' much for the benefit of the trade, at the Water of Leith. It cannot be so 
^ well carried on at Edinburgh. By being removed from Bdinbuxgh, a 

* great nuisance is removed, so that the objection resolves into this. That 

* the skinners do not sleep in town. The magistrates would confine the 
^ trade to the people who sleep in town, and work nowhere. An attempt 
^ is made to pervert an act Ibr the benefit of trade into regulations for po- 
^ Ktics. If a man goes to a distance, he can no longer serve the town, 
^ and is no longer to be considered as a burgess-freeman.' 

On the 9lh December 1767, the Lords found ^ That all the skinners of 

* the incorporation were entitled to the whole privileges of the trade, al- 
« though they resided without tiie liberties, and remitted to the Lord 

* Ordinary to proceed acconlinglj.' 

' Hunter Blair v. Phin, Slst January 1781 ; Fac. 

* Birtwhistle v. Lord Daer, 23d February 1791 ; Fac ; Sup. to Wight, 
p. 166, and Session Papers. It may be proper to mention, that this judg- 
ment was pronounced before the case of Lord Daer v. Keith Stewart and 
others, 24th January 1792, where it was found, that the eldest son of a 
Scots peer can not be enrolled as a freeholder in a county. 

Y 



338 OF THE ELECTION OF KAGIWRATES. 

In a oaae from the town of .LinlidigoWy it was decided, 
that a bailie ci rq;ality, who had been found guilty by the 
Court of Seaaon of an illegal extortion of money, while he 
acted as a judge, and had, therefore, been declared incapable 
of exerdiing the office of a judge, in all time coming, waa 
not disqualified from being a coundllor \ 

It was found, in a case in the House of Locds, that die 
common or town derk of a borough cannot at the same time 
be a magistmle of that borough '. 

In a late case a question occurred, how far a person was 
qualified to be provost of a burgh, under a set wfaidi required 
that that magistrate should bea resident guild-brotfaer. The 
new set of Montrose, acquired from the Crown in 1817, pro* 
vides, that the council shall condst of nineteen, in cl u di n g the 
provost and office-bearers, < of whidi nineteen, fifteen shall 

* be resident guild brethren, and four shall be resident 

* craftsmen, induding the deacon-convener for the tima.| 
In a complaint, it was objected to the person who had 
been elected provost in 18S0, that he was not a leddent 
burgess or guild-brother, but had merely been presented by 
the ma^strates a few years before, with an honQrary burgess* 
ticket. It was explained, that the regular buigms-ticket, 
after redting the burg^er-oal^i of fidelity, bote, that the re- 
odver of the ticket had taken that oath, and was then ^ amde 

* burgess and guild-brother of this bmgh i* ^rfiereas the 
ticket which had been conferred in this and various other in* 
stances, ndther redted nor made any mention of this oath^ 
but bore, that he was * made buigess and gpiikUbrother of 

* this burgh.^ It was admitted, that the person dected prt>. 
vost had not paid any dues at the time, but it was stated, 
that this was conformable to the practice in a variety of in- 

^ Bucknay v. Ferrier, 10th March 17^3; Fac. and Senioa Papen^* 
See thia case, mentioned nipra, p. 269, note. 

* Judgment of Houae of Lords in Monro and others cw Forhea and 
others, 3d May 1785 ; ««pro, p. 316. 



CKOWN WARRANT FOR ELECTION. 339 

stances, and that "^t^e individuals so admitted were equally 
liable to taxes, and were, in all other respects, the same a^ 
those who paid the r^^ular dues. The Court dismissed the 
ccNnplaint, * being satisfied that Dr Gibson (the person who 
^ had been elected provost) had for many years enjoyed all 
^ the privileges of a trading burgess in the importation and 
^ sale of medicines ; that he constantly resided within the 
< bui^ ; that he had been a member of the oounial for two 
^ previous years ; and that he had lately paid the regular 
^ dues of admission ^."^ 

The next question which requires attention, relates to the 
manner in which the crown may l^ally restore the dective 
power to a bur^, when its election of magistrates has been 
reduced. When an dection ot magistrates and councillors 
has been reduced by the Court of Session, in consequence of 
any irrqpilarity^ or where the election has from any cause 
not taken place at the usual time, a new election cannot take 
place until the King has granted a warrant for that purpose ; 
but as the corporation still exists, notwithstanding the lapse 
of its magistracy, it is understood that the borough may ask 
this warrant as a matter of right '. 

By the royal warrant, a poll .election has sometimes been 
granted to tiae burgesses, or bmrgesses and inhabitants; at 
other times, the last magistrates and council are empowered 
to name the new office-bearers and councillors ; and, in the 
cases of Path and of Aberdeen in 1716-16, the former ma- 

' Mason v. Magistrates of Montrose, 15th November 1821 ; Shaw and 
Session Papers. 

* Wight, p. 367.— By the statute 11th Geo. I. c. 3, appliissble to Eng. 
load only;, it was pravided. That where no election of the magiatncj had 
been made at the usual time, or where the election was yoid, it should 
•till be lawful ftr the * members, or persons of the borough who hare 
* right to yote, to proceed to election*' This statute was enacted, because 
by the common law of yttglyiii, corporations were dissolved if the head 
officer was not elected at the usual time.— Bladntone, i p. 485. 

y2 



S40 OF THE ELECTION OF MAGISTRATES. 

gifltrates akme were empowered to make the new nomina- 
tion'. 

Some dificussion took place on the Bench with respect to 
the legality of these respective courses, in a case from Mcm- 
trose, respecting an alleged nullity in the election of magis- 
trates, which took place in the year 1746, by virtue of a roy- 
al warrant, authorising the second of these modes of election, 
when the regular election had been prevented by the rebd- 
lion. It seemed to be admitted aa all hands, that the last 
mentioned course which had been followed with respect to 
Perth could not be defended. With respect to the second 
course, it was observed by one of tiie judges, that the crown 
had no power to grant such a warrant, for that, by the hpae 
of the regular day, the rig^t came to be vested in the bur- 
gesses to proceed by a poll election. Others of the judges, 
however, observed, that, by the act 14699 poU decdon was 
done away, and the right lodged in the council ; that the 
crown only did an act of justice in resUning the buigh to its 
right ; that it was too thin a distincticm, that the (at>wn could 
not restore the council, but only the town, to a poll dection ; 
and, that restoring the council was, in odier words, restoring 
the burgh against their omission. 

Mr Wight folloinng out die form^ of these opinions ob- 
servesS that originally all bcnrough diections were 1^ the poll, 
and dthough this mode was altered by the act 1469f c 80, 
which appointed the old council to choose the new, yet when 
thare is no subsisting magistracy and council, the burgeoKs 
at large ought to enjoy their andent right. 

Lord Bankton appears to be of opinion, that either mode 
may be adopted. ^ By our old law,^ says he ^, ^ all the bur- 
* gesses (called the honest men of the burrow)^ chused the 

^ See the instsnces of theie difFerent kinds. of warranto in the R^^rt of 
the Cemmittee of the Home of Commons 1881. 
> P. 389. » Vol L p. 60. 



CROWN WARRANT FOR ELECTION. 341 

*• magistrates at the Michaelinas head-oourt '. At this day, 

* if, by scHne intcrveening accident, the election of magistrates 
' and town-«ouncil is frustiated at the stated times, die pro- 

< vidihg the burrows with magistrates and other officers in the 

* mean time, till the next election, falls to the king, in virtue 

* of his prerogative : diis is dome either by the king^s im^ 

* powering the foemer magistrates and town^-oounctl to make 

* an election, upon the day mentioned in the warrant, in the 

< same manner as if it was the rq^lar day ; or by his Mqes- 

* ty'^s commission to certain perscms tooverseea poll election : 

* in this case only the firee burgesses ^ote, «• e. exclusive of 

* the honorary ones.^ ^ 

It would rather appear, that if this pcant were not influoi- 
oed by the practice in such cases, it might most naturally be 
expected, that, as the act 1469 does not expressly exclude a 
poll election, in all possible cases, but merely provides that 
the old and new councils shall chuse the office-bearers ; and 
as the condition on which this act hinges is no longer effec* 
tual, when a council no longer exists, the right should be 
given to these parties, who had it before that act deprived 
them of it. It may be observed, however, that, to adopt the 
argument of the supporters of the poll warrant, in its full ex- 
tent, it would seem to follow that the burgesses ought to have 
it in their power to proceed with the electi<m at once, without 
any necessity of going to the crown for authority, because if 
the ri^t of election vests absolutely in the burgesses, when 
the day of election passes, or the new election is reduced, 
then their right ought immediately to come into operation. 
But by a practice in a multitude of instances, almost without 
a single exception, an application for a warrant to renew the 
magistracy in some shape or other, has been made to the 
throne, — a proceeding which, in its own nature, implies, that 
the king is the source from which the authority for the elcc- 

* Leges Burg. c. 77* 



S4S OF THE ELECTION OF MAGUTEATES. 

tkm proceeds, and aeenw» ibewkxe^ to sappoae a certain de- 
giee of discretion on the part of the crown, as to the mode 
of leneiraL We are also met hy die practice of mote than 
a century, as to the mode of granting the ivanant, during 
wUdi *»wMs altiious!h the considerafale maionty of instances 
are lenewals bjr a poB-wanant, yet there are many examples 
of warrants to magistrates and conncil, wUdi TaiiaUe prac- 
tice also seems to import a di sci ^e tiun ary power; and there 
can be Httle doubt that if the legality of such warrants were 
again to be tried in a court of law, that practice ought to 
haye great weig^ on the decision ^ 

As the community of a borough requires to have its powers 
renewed by the crown, when the ordinary day of deotion 
passes without a valid dection, so it is hdd that, if a suboidi. 
note corporation has neglected to exemse its privilege of dec* 
tion of a deacon, at the usual time, that body cannot after* 
wards proceed to dection, without authority from the magis- 
trates '. These inferior corporations are usually estaUished 
by means of charters, or seals of cause, from the magistrates 
and council, containing powers or provisions as to the dection 
of deacons. Attempts have been made to destroy the ana* 
logy between the two cases, on the ground that, when magis- 
trates do not make a valid election, at the proper time, their 
powers are at an end, and the royal warrant can alone^autho- 
rise a new dection ; whereas a corporation continues to exist, 
although no deacon is elected. But it must be remembered, 
tluit, although a magistracy is dissolved, the community of 
the borough still exists, although it cannot proceed to elec- 
tion without authority from the King ; and that it is upon 

1 From the UnWn to 1818, there aro upwards of twenty inatances of 

poU-warnnts, and about seven of the other description. See Ueport of 

Committee of House of Commons, 1821. In 1825, the elective powers of 

Pittenweem were restored by a warrant to the old magistrates and coun- 
cU. 

* Donaldson r. Magistrates of Kinghom, 29th Julv 1789 ; Fac. 



CAN THE CROWN ALTER A SET. 34S 

this ground it has been maintained that a poll election is the 
Iqgal course of proceeding in such cases. 

In the course of certain proceedings relative to the Burgh 
of Montrose, a question arose regarding the power of the 
king to make alterations in the original set of the borough, 
as regulating the future dections, after the first pdl election, 
which had been granted for restoring the magistrates. The 
set of this bcm>ugh was recorded in the bodes of Convention, 
in Ae year 1706. This set was thought by many to be of too 
dose a description ; and an application having been made to 
the Convention, in the year 1815, to introduce certain 
changes, an act of Convention was passed, in July 1816, es- 
tablishing certain* alterations, and thereby rendering the mode 
of election of a more popular description. Not satisfied, how- 
ever, with these changes, the parties concerned proceeded, in 
1816, to an election of the office-bearers and magistrates by 
ballot ; and, in consequence of this irregularity, the election 
was reduced by the Court of Sesskm, and the botoUgh for 
the time disfranchised 

An application was then made to the King in Council, 
praying for a warrant for election of magistrates and coun- 
cil, by a general poll of burgesses, heritors, and inhabi- 
tants, resident, and bearing a part of the burdens of the 
borough ; and also for a farther change in the set, over and 
above the alteration recentiy introduced by the Convention. 
On the 17th November 1817, the Prince Regent, with ad« 
vice of the Privy Council, ordered, * that the guild-brethren, 
' members of incorporate trades, and inhabitant burgesses, 
< who resided in the borough, at and previous to Michaelmas 
* 1816,^ excluding honorary and non-resident burgesses, town 
servants, &c. should assemble on the 13th of October, then 
next, to dect magistrates and council ; and the warrant also 
introduced still farther alterations in the set of the borough, 
than those ^hich bad been sanctioned by the Convention. 



344 OF THE ELECTION OF MAGISTSATES. 

Under this warraat, the magistracy of the borou^ was re- 
newed in 1818; and the subsequent dection in 1819 was 
made agreeably to the provisions of the new set. After tbe 
election in 18S0 a complaint was presented by an individual 
interested, alleging that certain irregularities had taken place ; 
but the Court were satisfied that there was no foundation for. 
these aU^ations. While, however, diey dismissed the com- 
plaint, they declared, * that, by entertaining thb question, un- 
^ der the authority of the election statutes, and giving judg- 
' jnent on this petition and complaint, they do not. consider 
^ themselves as. giving any opimon upon, much leas recog- 
^ nising the legality of, the late royal warrant, whereby the 
^ old sett of the burgh was changed ^^ 

For the purpose of giving effect to the doubts thus plainly 
expressed by the Court, with respect to the l^ality of the al* 
teration in the set by the royal warrant. Mill, a guild-brother, 
who bad voted as such at the previous dection under the 
new systan, raised an action, calling the magistrates and oiB- 
oers of state as defenders, and concluding for reduction of 
the royal warrant. The magistrates objected that Mill was 
barred personali eofcqftione, by having taken the benefit of 
the 'new set ; and that, as an indii^idual burgess, he had no 
right to insist in the action, more especially as, by the old set, 
he had no voice in the election. The pursuer answered, that 
the plea of homologation was not applicable to public and 
political transactions, and had been repelled in similar drcum- 
stances, in the case of Lawrie v, the Magistrate of Edin- 
burgh ' ; and that all the burgesses had an interest in the po- 
litical constitution of a borou^, and therefore possessed a 
ri^t to challenge any wrong affecting it. An objection was 
also stated, that the members of the guildry, whose right 
would be affected by the decision, ought to have been called. 

* Mason v. Mif^trates of Montrose, 15th November 1821 ; Shaw. 

* eth June 1818 ; Fac. 



CAN THE CONVENTION ALTER A SET* S45 

A nugority of the Court were of opinion, that the objection 
of homologation was not wdl founded, and that every burgess 
had a right to insist that the constitutidn of the burg^, as e^ 
taUiflhed by law, should be preserved. The objections to 
the pursuer^s title were therefore repelled ^ 

This judgment was, however, reversed on appeal. The 
appellants, in their case, brou^t forward all the objecticMis 
to the title of the pursuer, which were urged in the Court 
below ; but the reversal proceeded on^the acquiescence of the 
pursuer in the new set '. The opportunity was thus lost of 
having the important point of law tried which was involved 
in the merits of the case. 

Several questions have also occurred with respect to the 
validity of alterations by the conventions of boroughs, of the 
sets of particular bcNfoughs. In one case, where a committee 
appointed by the Convention, in the year 1676, had confirm- 
ed a set of the borough of Inverness, or made a new one ; 
and, in the year 172S, the Convention had ratified an act of 
the town-43ouncO, introducing an alteration into this set, the 
Cfiurt Sound, * That (he Convention of the Royal Boroughs 

* had power, on just and reasonable considerations, to make 
' alterations, upon due and regular application, in the sets of 

* particular boroughs, formerly given them by the Conven- 
*tionV 

In another instance, the Court approved of an alteration of 
the set of the borough of Inverkeithing, by the Convention, 
whereby the five deacons of trades were admitted councillors 
e^c officio*. 

In a subsequent case, an action was brought by certain 

^ Mill e. Magistrates of Montrose, 28th January 1824 ; Fac. and Shaw. 

* This appears from notes of Lord Gifibrd*s speech, which I have seen. 
' The Trades and Magistrates of Inverness o. Duff of Drummuir, and 

others, Members of the Guildry» 11th February 1724. 

* BufKeases of Inverkeithing v, Magistrstes, 89th January 1746 ; Fol. 
Diet. ill. p. lOa 



346 OF TH£ ELCCTION OF MAGISTRATES. 

biugeBses <tf the town of Wick, to vhove it declared, < That 
^ in all time coming, the election of magistrates and coundl- 

< lors ou^t to proceed in confermity to the charter of erec- 
' tion of the borough in 1689^ and, particukrlj, that only 
actual residenten should be elected offioe-bearors. Lord Kil- 
kerran, in reporting this case, states, that the Court took lit- 
tle notice of the first and general conclusion, and that it wai 
not insisted in, after it was maintained in answer, inier aSa^ 
that * Charters of erection are often receded from, in conaist- 

< ende with the general scope of the erection, sometimes by 
' long usage, sometimes by the act and deed of the conven- 

< tion, which has power by law to that effect V This states 
ment implies an approbation of this doctrine as to the Convene 
tion by die Court, or at least by the reporter. But the Court 
came to a different concluskm, in a subsequent case, in whidi 
they suspended a resolution of a majori^ of the townncouncil 
of Edinburgh, to apply to the Convention for dispensing with 
the form of leeting, in the election of deacons' The ques- 

1 Anderson and othen o. Sinclair and othefs^ November 10» 1748» ftc. ; 
Killcp.lia 

* Daliymple and others v. Stodart and others, 7th August 1778 ; Fac 
The foUowing note of the opinion of the Judges in this case, was taken by 
Sir Ilay Campbell :— 

* Gartbfuiime. Wish to see the powers of Convention of buighs ttied. 

* Desirable that there should be a power somewhere, without going to Far- 
'liamrat. 

' Cwinfftcn. No power. Constitution of Buigfas fixed by Articles of 
< Union. If had, would be for cutting off extraordinary memben. If 
^ competent, any member of coundl may apply. Suppose refine to altci^ 
«th!s Court has centroul by adTocatioo and suspension. This bdn^s 
^ (would bring) the power ultimately to this Court One of thegrieranoes 
' befinre the Union. If this part of constitution may be altered, whole 
*may. Suspension proper. Supposearesolutionhadbeentoapply to She- 
<riff. 

' JusHce-Clerk. Appears hard at first sight, tliat should not hare power 
' of chushig their own deacops, but reason was, that they became 
' of council. Right of extraordinary deacons limited to certain 

* But third reason of suspension, the most important one. If Convention 



CAN THE CONVENTION ALTER A SET. 347 

tion has been again stirred in two cases now in dependence. 
Actions have been lm>iight at the instances of the officers of 

' have legislative jurisdiction, n6 matter whether act of council or not, but 
^ clear that no power. Many of the sets established by charter from the 
*' Crown, confirmed in Parliament. If power to alter in convention, this 

* Is npping the lbuDda£io& of constitution. Even the le^alature itself 
' does not interfere to alter the constitution of boroughs in Enj^and. So 

* delicate a matter enters into the vitals of the constitution of Parliament. 
*■ Senate terminu quoe paires vetiri potuere. 

* Brtu^fidd, Whether Convention have power or not, have formed no 

* opinion. Suspenders are cutting before the pcnnt, complaining before 
^ they are hurt. If Convention has no power, even a nugority cannot 
} procure alteration. If have power, minority may apply. Here only a 

* resolution, why should a Court interfere. Suppose Sheriff; If Sheriff 

* sustains himself^ as a judge may complain. Not in a dedantor of right 
*• here. In that case Convention ought to be called. If question arises in 

* a particular case, will allow the ^udge himself to say, in the fint place, 

* whether haa jurisdiction or not Will not suspend a citation. Suppose 
*• Convention refUse to make the alteration, this Court will not make it A 

* court of police will ^ve redress, if they alter or encroach upon establish- 
' ed rights, but will not say to them you must do so and so. High ways. 

* Suppose justices alter the road, this Court may correct this ; but suppose 
' refuse to make alteration, doubt if Court will controul this. 

*• BOioek* £xtraordinary deacons had no vote. Cannot force the coun. 
^ cil into this question, where miyority was against it 

' Kamee* Convention no parliamentary powers ; but doubt of suspend- 

* ing this act of coundL Nobody hurt here. Why should we hinder him 
^ from exposlBg iiiinselfl 

* Ahtu WiU not give consultations to parties. Extraordinary deacons 
' had a ri^t to concur in this act. — ^ 1*11 stare away your very jiower to 
'think.' 

' PttfMetU. 1*1, Whether extraordinary deacons had a right, not in 

* view of decreet4U'bitiBly— not determined by decreet-arbitiaL Entitled 
' to vote in a matter concerning constitution of burj^ Not in power of 
' every individual to apply to royal burghs. But here an act of Coun- 
' dl of Edinbuigh. Proper to consider here whether Convention has 
' power or not Will not allow them to go to incompetent court, and to 
' proceed in foolish litigation. If can correct them in making improper 
^ alteration, may] also correct in refusing. No room for distinctions. 
' Very unconstitutional power ; but difficulty from practice since Union. 
*• Inverness, &c. Solemnly determined thai a jurisdiction there was given 



348 OF THE ELECTION OF MA6ISTUATES. 

State, for reducing certain alterations made by the Conven- 
tion, in the sets of Dundee and of Brediin ; and fordedarii^ 
that the Convention has no power U> alter the constitutions of 
boroughs. Against these actions defences have been lodged, 
denying the title of the pursuers to insist in the reductive 
conclusions, and stating, with respect to the dedaraiory con* 
elusions, that the proper parties have not been called. 

Besides the two modes of altering the sets of boroughs, by 
the Crown and by the Convention, the legality of which 
modes it has been seen has been called in question, there is a 
third method liable to much less doubt, viz. the operation of 
a uniform usage of forty years, in altering or modifying the 
set of borough. The efficacy of this mode of alteration was, 
in a very recent case, recognised by Lord Chancellor Eldon. 
Questions will, however, of course arise, as to the matter of ftbct, 
how far there has been, in any particular case, such a uniform 
usage, as will amount to a modification or alteration of the 
set A case has very recently been remitted from the House 
of Lords, for the purpose of having an inquiry made, how 
far the set of a burgh had been altered by usage. In this 
case, the set of the burgh requires the three bailies of the ' 
burgh, at the election of the new bailies, to * give in a leet of 
* nine persons, whereof they themselves are always thie^' out 
of which the burgesses are to choose the three new bailies ; 
and, at the election for the year 1828, a leet of that kind was 
given in. A complaint was, however, lodged agiunst that 
election, on the ground that, by long practice, the custom had 
been, for each bailie to give in a separate leet, including him* 
self, and to elect one magistrate from each leet. A proof was 
led from the town-books, as to the practice ance the Union, 

' by Convention itself. But if set once fixed, the same bj whit aulhori- 
' ty. For a hearing upon point of jurisdiction. 

* BraxfieUL'^AA to high roads, meant their jurisdiction upon act 1669, 
' where no private right. 

*• Ston^IeL^^ln an act exceeding their powers, they are only private 
' persons, and majority cannot bind minority.* 



USAGE MAY ALTER A SET. 349 

and the Courtj on advising it, dismissed the complaint, being 
of opbion, that no such invariable practice has been esta- 
blished as to alter the set \ Against this judgment an appeal 
to the House of Lords was entered, when the LonLChan- 
odlor expressed his 'opinion, that, in his view, a contraiy 
usage for forty years might vary the set, although be did not 
wish to decide that point; and that the case ought to be re- 
mitted for farther inquiry, into the practice, and as to the ef- 
fect of such practice on the set. The case was remitted ac- 
cordingly '. 

' This ^pean, from the report of the case, to have been the ground of 

the ultimate decision. At a former advising, it was rested partly on the 

diGumstanoe, that the persons chosen would have been elected, in what- 

e?er form the leet might have been made out ; Gardiner o. Ma^strates 

cCraxenny, 9th March 1826; Shaw. 

^WHaicfal827. 



( 350 ) 



CHAPTER II. 



¥ 

OF REVIEW, BY THE COURT OF SESSION, OF ELECTIONS OF 

MAGISTRATES AND COUNCIL. 



Previous to the dates of the statutes bestowing upcm cer- 
tain persons the right of summary action or complaint, to 
the Court of Sesnon, r^arding the electifm of Magistrates 
and Coundl, that Court enjoyed, at ooounon law, a jurisdic- 
tion in regard to such elections. The collections of the deci- 
sions of the Court of Sesaon afford examples of the exerdse 
of this jurisdiction ^. 

This right of sup^ntendanoe was, however, modified by 
the statutes above mentioned. The act 7th Geo. II. c. 16, 
sect. 7) provided, that any magistrate or coundllor m^t 
bring ^ his action,^ challenging an election, or any abuse 
which had taken place at it, within the space of aght weeks 
onhf^ and the Court was required to decide the question «um- 
maribf^ and to allow the successful party the costs of suit. 
Afterwards the act 16th Geo. II. c. 11, was passed, the £4th 

^ It may be observed, however, that there appear not to be many ex- 
amples in the CoUections of Dedsions, of processes brou^^t before the act 
7th Geo. II. in the Court of Sesrton, rdative to elections of ms^stimtes 
and coundUors. We have an example in Stair, yd. ii. p^ 844, of a decia. 
rator, decided in 1681, relative to the Magistracy of Stiriing continini^ 
too long in office ; and in Gosford, p. 328, of a dedarator and reductioii, 
in which the declarator only was insisted in. A few other examples of 
processes are mentbned, FoL Diet. L p. 117 s See also Edgar, p. 89. There 
may, however, have been many instances not reported. In the coiUectiun 
of Lord Elchies* Session Papers in the Advocates* Llbraiy, we have an 
instance of a reducUon of a borough election, about t&e year 1722 ; vol li. 
p. All, Before the Union, the Privy Councii of Scotland fiequendy 
Judged in cases of borough dections See Wight, App. No. SO ; and Re- 
port, 1821, App. B. 



EFFECT OF STATUTES ON COMMON LAW. 351 

section <^ which provided, * That it shall and may be lawful 
' to, and for any constituent member, at any meeting for elec- 
^ tion of magistrates or councillors, or of any meeting pre- 

* vious to that for the election of magistrates and councillors 

* respectively, who shall apprehend any wrong to have been 
' done by the majority of such meeting, to apply to the said 

* Court of Sesaon, by a summary complaint, for rectifying 

* such abuse, or for making void the whole election made by 
^ the said majmty, or for declaring and ascertaining the elec- 
' tbn made by the minority S so as such complaint be pre- 
^ sented to the said Court of Sesnon, within two kalendar 

* months after the annual election of the magistrates and 

* councillors ; and the said Court shall thereupon grant a 

* warrant for summooing the magistrates and councillors 

* elected by the majority, upon thirty days'* notice *, and 

* shiall hear and determine the said complaint summarily, 

* without abiding the course of any roD, and shall aUow to 
' the parly who shaU prevail thor full costs of suit' 

The question has given rise to mudi discussion what eflRect 
these enactments havehad upon the common law respecting the 
ni^t of dmUenging elections of magistrates and coundUors. 
The first of these statutes, it will be observed, authorises 
any magistrate or councillor apprehending wrong to have 
. been done, * to bring his action before the Court of Session 
^ in Scotland, for rectifying such abuse, or for making void 
' the whole election (if illegal) onbf within the space of eight 

* wedcs after such election is over.' It seems dear, tiiat, so 
br as respects this act, nojbrm of action was established dif- 

^ It Is justly observed b j Mr Wight, jk 337) that it would have been more 
accttrate to have said, * Ibr declaring and ascertaining the persons voted for 

* hj the minovttjr to be duly elected,' becftose the preceding sections of the 
statute proU^t, under severe penalties, and the sanction of nullity, any 
sepaxate election by the minority. 

* This notice is now restricted to fifteen days, by the 14th Geo. III. 
c 81, sect* 1* 



352 REVIEW BY COURT OF SESSION. 

fering essentially from that process whidi was competent at 
cominoii law. The object of the legislature seems to have 
been to limit the time within which the action should be 
brought^ to provide for its speedy decision, and perhaps also 
to exclude the title to pursue, of certain parties who may have 
previously enjoyed such a title. The action was required to 
be brought ' orJy within the space of eight weeks,^ as at cc^m- 
mon law it was perhaps not even necessary to bring it within 
the year ; because, by the challenge of a previous election, 
the subsequent one would fall from want of power in the 
electors. The Court was also, by an after part of the clause, 
required ^ to hear and determine the cause 9U7nmarihf C and 
the right of action was given to * any magistrate or council- 
' lor of the IxMrougfa.' It b evident, however, that ncne of 
these provisions altered the proper form of the old process. 
It was still an action in its technical sense, originating by 
summons, and called in common form ; and, in practiGe, the 
old forms of action w«« adhered to^. But it is equally dear 
that the common law right was limited to this effect, that it 
was no longer competent for a magistrate or councillor to 
bring * his action,^ i. e, the old form of action for wrong done 
at the election, after the lapse of eight wee^s '. 

^ On looking into some of the cases decided after the pasnng of the act 
7th Gea II. but before the 16th Geo. II., as they appear in the Session 
Papers lodged in the Ldbrary of the Faculty of Advocates for Lord £1- 
chies* decisions, it appears, that the process was sometimes a reduction, 
(See papers for No. 2. Buig. Roy.) sometimes a declarator (See voL viiL 
p. 443, where the declarator concluded for declaring that the pursuer, and 
not another person, was duly elected councillor), and sometimes a reduc- 
tion and declarator (voL viiL p. 629.) 

' It does not distinctly appear, so fiu- as I know, that subsequently to 
the 7th, and prior to the 16th Gea II., any decision was pronounced, lead* 
ing necessarily to the conclusion, that the common law was wHrg^ super* 
seded by the former act, so as to preclude an action in dreumstaDcea noi 
distinctly fiilUng within the letter of the act. There is, indeed, a jodg^ 
ment mentioned by Elchies (Buigh Royal, No. 17,) finding, that the sta- 
tute 7th Gea II., i e. the limitation of that sUtute, extended to * pro. 
• cesses or conclusions of declarator as well as of reduction;* oTj as it is 



NO REDUCTION AFTER TWO MONTHS. 358 

If these observations appear well founded, the next question 
must relate to the effect of the act 16th Geo. II. upon the pre- 
vious state of the law. The act 16th Gea II. it appears, from 
the clause which has been quoted, provides, that ' it shall and 
* may be lawful^ for a constituent member of the election 
meeting, or any previous meeting, apprehending wrong to 
have been done by the majority^ ^ to apply to the said Court 
^ of Session, ^ a summary complaint^ for rectifying the 
abuse, or for voiding the election of the majority, or declaring 
that of the minority, ^ so as such complaint be presented 
^ within two kalendar months after the annual election,^ and 
the Court are required ' to hear and determine the said com* 
^ plaint summarily.'' Here was evidently a totally new form 
of process made competent. There is, however, no express 
repeal of the previous act. 

In the^tf^ place, it is now quite settled, that, after tlie 
lapse of the two months mentioned in the act of 16th Geo. II., 
it is incompetent to challenge an annual election of magis- 
trates, not only by complaint, but also by reduction, in con- 
sequence of any wrong done at that election ; but the point 
is probably not yet quite settled, whether a reduction is still 
competent within the period of eight weeks or two months, 
or whether a complaint is now the sole mode of challenging 
an annual election, on the ground of wrong done at it. The 
point as to the incompetency of a reduction after two months, 
has been determined in several cases. 

Thus a complaint against an election at Anstruther-Easter 
having been cast, on the ground of an informality in the exe- 

stated in the Notes, voL 2d, * to the conclusion of declarator as well as of 
*- reduction.' But these processes or conditions were so intimately con* 
nected, that if the statute reached the one, it could hardly fail to reach 
the other. Indeed, a declarator sometimes concluded to find such a one 
elected, and such another nut elected, which is, in effect, to reduce the 
election of the latter. I have not succeeded in finding the Session Pa- 
pers in the above case. In so &r as r^i^ards a general declaratory action 
as to future elections, it will be afterwards seen that such a process is 
competent even at present. 

z 



354 REVIEW BY COURT OF SESSION. 

cutioii, and the two kalaidiur months having on that acoount 
expired, the minority brought an action of reduction of the 
election, at the distance of more than two kalendar months 
from its date. No objection to the competency was stated in 
the Court of Session, and the election was reduced. In the 
House of Lords, however, an oligection to the competency of 
the action was stated, on account of the lapse of the statutory 
period ; and the judgment of the Court of Session was there 
reva-sed, and the action dismissed, ^ upon this single ground,^ 
as Mr Wight states, * that the mode of obtaining redress 

* pointed out by the election statutes, was the only one that 

* could be followed, these statutes being intended by the le- 

* giriature as a separate code in matters of that kind, and a 

* line being thereby drawn, beyond which litigatioD should 
< not be carried on in any mode or form K"* 

We have anoth^ account of this judgment of the House 
of Lords given in an infcnmation to the Court in the case, 
which decided that there now exists no common law right in 
literary property independent of statute '. The point of dif- 
ference between the two accounts is, that, according to the 
latter, the successful argument was founded, not on boA sta- 

> Young and otfaers «. Johnntone and others, decided in tbe House 
of Lords, I'm « Wight, p. 389. For a &rther account of this oaae bj 
Mr Wight, see respondents* case in Anstruther- Wester case. 

< Hinton v. Donaldson, 28th July 1773, FoL Diet iii 38S. Sir lUy 
Campbell was counsel for the successful party, and gires the following 
account of the case of Young, Inform, p. 55. It must be obserred that 
he had quoted at length the dause of the act 10th Geo^ II. iiHWiJiiftilf 
before. ' In a kte case, Young and others of Anstruther-Easter, having 
^ allowed the two kalendar months to elapse, were cut out of their re- 

* medy of summary complaint upon the statute ; but they brou^t an ac- 
^ tion at common law for Toiding the election. Proofii were adduced of the 
^ bribery and corruption. The pumiers prevailed in this Court, and the 
*■ election was voided. 

* An appeal, however, having been talcen against this decree^ the chief 
^ reason urged for a reveml, and for the first time stated fh^m the bar of 

* the House of Peers, not having be^ before attended to, was. That tbe 
' Court had given judgment in an action which appeared incompetent, the 



NO REDUCTION AFTER TWO MONTHS. 855 

lutes, but on that of 16th Geo. II. exclusively, ivhich, it was 
maintained, put an end to all the previous ^ election laws^ on 
the subject, s. e. as well the act 7th Geo. II. as the conuuon 
law. But it is clear, from both reports, that the House of 
Lords were, at all events, of opinion, that a reduction beyond 
two months was incompetent. 

A judgment to the same effect appears to have been pro- 
nounced by Lord Braxiield in a subsequent instance, and 
his judgment was affirmed in the House of Lcurds. An ac- 
tion of reduction and declarator was brought by certain bur- 
gesses of Anstruther-Wester, nearly twelve months after an 
annual election, concluding to have that election set aside on 
various grounds, and to have it declared that certain rules 
should be observed as to future elections. In defence, it was 
pled, *'firsty That the appellants were not constituent mem- 
^ faers of coundl, and therefore could bring no action to re- 
' duce any election, not having any interest in the same ; 

* and, 2dS^, That supposing it competent to them to bring 
' the action, yet, as the same was not brought within two 
' months of the election complained of, they were baned by 
^ the statutes of the 7th and 16th Geo. II. before men- 

* tioned.' 

Lord Braxiield pronounced this judgment, (19th Feb. 1786) . 

*• itatute having limited the time, and pointed out the only mode for ob- 
*' taining redreaa, which had been n^lected. 
' The ttnswer made was, That the statute only authorised a new mode 

* of action for redress of wrongs at annual elections, but that these wrongs 

* were still actionable at common law ; and that the remedies oft aniB com- 

* petent, could not be meant to be taken away by the statute : That where 
*" a statute only allowed a particular and new mode of redress, in a case 
*• whidi was before remediable at common law, the common-law remedy 
*• still remained entire. 

*■ Htpiied^ that the intendment of the legislature was to take into con- 
' sideration all the election laws, and by that statute, so full and particu- 
*' lar, to cut off at once, and put an end to all questions and disputes that 
*' might have arisen upon these laws. 

* The House of Lords reversed the decree of the Court of Session.' 

2 ZS 



356 REVIEW BY COURT OF SESSION. 

^ Finds that the pursuers have no title to insist in the process 
^ of reduction ; that the reduction is incompetent, and there- 

* fore assoilzies the defenders from that conclusion of the Ubel, 

* and decerns ; reserving to the pursuers to insist in the de- 
^ claratory part of their libel, and to amend the same if they 
^ shall be so advised." 

This judgment was affirmed on appeal, with costs K It 
will be observed, that both the objection to title, and that 
from the lapse of the two months, were pled ; and that the 
interlocutor of Lord Braxfield, as given above, and as affirm- 
ed by the House of Lords, appears to sustain both objecticMis. 

The same principle was recognized in a late case, which 
was connected with a keen political contest for the represen- 
tation of a district of boroughs. The election of magistrates 
toe the burgh of Pittenweem, for 1823, having been reduced,, 
as not made by a quorum of those having right to elect, a royal 
warrant was obtained on the 19th July 1825, ordering those 
who composed the magistrates and town-council on the day 
preceding the 16th of September 1828, to meet on the IStb 
September 1825, and to choose the usual numb» of coun- 
cillors, after which those councillors were to choose the office- 
bearers according to the set of the borough; and the subsequent 

' Robb and othen, buigesfles of Anttruther-Weqter v. the Magistrates 
and Coundl, 2Sth April 178^ Supplement to Wi^t, p. 146, and Ap- 
peal Cases, Advocates* Ldfaniy, 1785, No. 12. It may be mentioned, 
tbat, in the respondents* appeal case. Lord Braxfield*8 interlocutor Ib given 
somewhat differently from that in the text, which is taken from the ap-^ 
pellants* case. In the respondents* case it is thus : *• Finds that the action 
^ of redui:tion was incompetent to the pursuers Uppellanta) : That they had 
« nozifi^t to carry on the same ; and theref(»e assoilzies the defendera (re- 
^ spondents) so ftr as rqrarded the reasons of reduction, reserving to the 
*' pursuers (appellants) to insist in their declarator, and to amend their 
' libeU if they shall be so advised.* It is manifest that the interlocutor 
could not have been in these ipmstimia odrMf, finom the fi«quent use Of the 
ptut tense. The appellants, of course, were bound to give the interlocu- 
tor atiturately from which they appealed ; and the form in which ihe^ 
give it has much more the appearance of formality and correctness. 



NO REDUCTION AFT£R TWO MONTHS. 857 

dectkms were oirdered to be conformable to the set. The 
iDterim managers of the borough assmned the direction of 
the mode of executing this warrant, and declared that one 
person, namely. Sir William Rae, was not entitled to vote, 
on the ground, ifUer dUay that he had not qualified previous 
to the 1 6th September 1828. In this way there were eleven 
members of this party present on the 18th Septembger 18S5, 
and only ten of the party opposed to them. The latter party 
included a person named John Tod, who was provost previ- 
ous to September 18S8 ; but anoth^ named James Tod^ 
who had assumed the chief management during the interreg- 
num, took possession of the chair. This latter individual 
was then chosen prescs by elevoi votes to ten, the vote of Sir 
William Rae having been refused, but given under protest 
Councillors were then chosen by dther party, with the same 
number of voters on each side as in the choice of preses. 

An action of reduction was then brought by James Tod 
and his party, concluding for having the election of the other 
party set aside. This action was dismissed, (xi the ground of 
certain defects in the execution of the summons. A new ao- 
tion of declarator and reduction was then raised at the dis- 
tance of more than two kalendar months from the election. 
Defences were given in, stating, inter alioj that the action 
was incompetent on two grounds ; 1^, That an annual elec- 
tion can only be challenged by complaint, and that within two 
kalendar months. 2d, That, supposing an action of reduction 
and declarator competent, that action must be brought with- 
in two kalendar months. The pursuers maintained, tliat the 
eiection sou^t to be reduced was not an annual meeting, or 
any previous meeting, to which meetings alone the statute 
16th Greo. II. applied ; that an action lay at common law, 
independent of the statute ; that this was not truly the case 
cf a minority complaining of a majority, because there were 
deven voters on each side, and the casting vote truly lay with 
James Todj the chief magistrate before 16th September 



S58 REVIEW BY COURT OF SESSION. 

1823 ; and that the action complained of a violation of the 
royal warrant, by the unjustifiable assumption of the right 
oS direction by the party of interim managers, which was 
therefore a dUfferent case from that in the view of the statute. 
It was answered, that the election challenged was truly an 
ordinary Michadmas election, although under the royal au- 
thority; that proceedings for voiding an dection must be 
Imnight within two months, and even within that period it is 
doubtful if a reduction is competent ; that the defenders 
^ere prifna Jade the majority ; and that the averment of the 
pursuers, that the royal warrant had been violated, amount- 
ed, when the facts were considered, to nothing more than 
that the set had been violated, which is the usual averment 
in such cases. The Court found the action incompetent, and 
dismissed it ^ ; but, in pronouncing this decision, the judges 
were much divided in opinion. Two of their Lordships 
thought that a complaint was now the only mode of chal- 
lenging an ordinary annual election, or one in the circum- 
stances of the present case. One judge inclined to think that 
a reduction might be competent within the statutory period, 
but that ndther a reduction nor a complaint were competent 
after that period. The remaining two judges held that the 
common law process of reduction still existed, even after the 
lapse of two months '. A majority of the Court, however, 
thus concurred in holding that the action of reduction whidi 
had been brought in this case after the lapse of two months 
fit>ra the election was incompetent. 

This judgment was a£Brmed on appeal ^, 

It is now therefore quite settied, that a reduction is not 
competent after the lapse of two months from an annual elec- 
tion, on account of any wrong done at that election. The 
election statutes, or perhaps the 16th Greo. II. alone> if that 

' Tod and others v. Tod and others, 2d June 1826 ; Sess. Papers. 

* See the opinions, Fac ColL 2d June 1826L 

* 2ath Marth 1827. 



V 



NO REDUCTION AFTER TWO MONTHS. 359 

act shall be oonsidered as having virtuathf repealed the 7th 
Gea II., may be held to have superseded the common law on 
the subject. 

It was thus also decided in the case of Pittenweem, that aa 
election under a royal warranty where that warrant has been 
gnmted to the former magistrates and council, is in the same 
situation as an ordinary annual election, with respect to the 
oompetent modes of bringing it under challenge,«-Hi point 
which had, indeed, been also established in a previous case ^ 

The question, however, still remains, whether a reduction 
is competent wUhin two months, or rather within the period 
of e^ht weeks, menticmed in the act of 7th Greo. II.*; since 
this act is not expressly repealed by the 16th Gea II. ; or 
whethtf a complaint is now the only shape in whidi the merits 
of an decdon can be tried, on the ground, that the act 16th 
Gea II. was intended to supersede all the former law on the 
subject, both statutory and oommcm. If the account of the 
case of Anstruther-Easter, as given in the question of literary 
proper ty , were to be received as the acciurate one, then it 
would follow that a reduction is incompetent, even within the 
statutory periods, because the argament, according to that 
aocx>unt, was, that the statute of 16th Geo. II. had now be- 
come the sole code on the subject, to the exclusion of all the 
previous law. But we have seen, that, according to Mr 
Wight^s statonent of the grounds of the decision of the 
House of Lords in that case, it was not the 16th Geo. II. 
alone, but that act, in conjunction with the previous one of 
7th Creo. II., which was held to form the election code ; so 
that both acts must be held as in force, and a complaint oom- 
petent under the one, and a reduction under the other. Mr 
Wight's own view of the point in dispute, is confonnable to 
his account of this judgment of the House of Lords : — * An 
* action of reduction,'' says he, * is still competent, as well as 

^ Couts and others v. Doig and others, 23d January 1747) KiUr. See 
this case, infrof under Complaini* 



860 REVIEW BY COURT OF SESSION. 

< a complaint ; but it must be bTought within the time limi- 

* ted by the statute *. 

The case of Wigton * also seems to support this view of 
the matter ; or, at all events, nothing appears to have been 
decided in that case, which is hostile to this view. An^actioo 
of reduction and declarator was brought by certain burgesses, 
within the space of eight weeks from an dection c^ magistrates, 
concluding to have that election set aside, on various grounds', 
and also that certain rules should be observed in future. 
This action, however, appears not to have been brought un- 
der the statutes, but to have been instituted as at oHnmon 
law. The tide of the pursuers was objected to, on Che 
ground that burgesses never had, as was alleged, any right 
of reduction of an election at common law, and that no right 
of action was given by the statutes to the burgesses at large ; 
but the competency of a reduction, if brought by the proper 
parties, was not objected to ; on the contrary, in the informa- 
tion for the magistrates, the competency of a reduction with- 
in the statutory period was distinctly admitted \ The Court 
sustained the objection to the title^, and acquitted the ddfen- 
ders from that conclusion by which it was sought to void the 

1 In the case of Wigtoo, we find the same sentiment thus stated bjr Mr 
.Wight, in his information for the magistrates : — ^ This last redted act 
' does not repeal the former ; and, therefore, the persons who are autho- 

* rised to insist for redress of a supposed wrong, may do so, dther by a 
f' summary complaint, or 'by an ordinazy action ; but then such ordinary 

* action can only be maintained by those to whom the summary compUdnt 
*• is competent.* The idea which seems to run through Mr Wight's 
pleadings in the cases before the Court, about this period, i^ that both 
statutes are still in force. 

^ Cowan and Macgufifbk v. Vans Agnew and others, nugistiates of 
WigtoB, 88th June 1782 ; Wight, p 340 ; Fac. and Session Papers. 

^ The election was on the 28th September, and the action was brought 
on the 17th November. 

* See the quotation in note ^ 

^ That the decision proceeded on the title, is manifest from the follow, 
ing notes of the opinion of the Judges taken by Lord Halles :*.* Bta^Mi. 



HSDUCTION WITHIN EIGHT WEEKS. 861 

dectioD. It is therefore plain, that the'dedsioii proceeded 
on the point of title, and not on the form of the action. 

On the whole, it would appear that it may still be oonsi- 
dared as an open question, whether a reduction could now be 
brought of an annual election, under the act 7th Geo. II ^. 

It sometimes happens, where a complaint has been brou^t 

* Reduction is not competent at the instance of a bui^gess ; if it were, ab- 
*• -mitd consequences would follow. B j the act 16th Geo* II., a constitu- 

* cni member of the meetiiig, and no other, is entitled to complain ; and 
*' be must complain within eigblt weeks. If a buigess is entitled to com- 

* plain, it must be i^t coMoif law ; and then there will be no limitation. 
^ Hence a constituent member, whose interest is most direct, will be limi- 
^ ted ; and he whose interest is more remote, will not be Umited.' 

^ Gtudttuhm^ I see no remedy ; and yet it is strange that unanimity in 
*• acting wrong should preclude challenge.' 
* Hmlet, The evil is not great ; for in boroughs there is seldom such an 

* unanimity. There is generally to be found some one person or other 

* wilfing to apply for redress of wrongs done. This obseryation is justi- 
*• fled by experience ; for the supposed defect in the law was never felt till 

* (now) ; but indeed a remedy is not wanting, and that is a declarator, which 
*■ will set matters to right in future ; and this is sufficient, though no 
' doubt there may be men more inclined to force on a poll election by re- 

* ductioa, than to reform abuses by declarator.* 

*• MemmL It is said, that a remedy is wanting ; but if every buigess 
' had right to insist in a reduction, the remedy would be wone than the 



* On the 25th June 1782, the Lords found, that the pursuers had no 
*' title to insist in the reduction ; and therefore assoilzied.* 

The same account of the judgment is given by Mr Wight, p. 340 ; 
and in the following short notandum on the Session Papers, in the ease of 
Jedburgh, of Sir Ilay Campbell, who was counsel in the case : — *" Late case 
^ of W^ton. Vans Agnew v. Cowan, &c Statute sirictiy adhered to ; 
*' and action cast, though within time, beeaute not brought at instance 
' <if constituent members. There, election made on wrong day, a mere 
« nullity ; aigoed that could be maintained at any time, and by any person 
* intereated ; but Court thought otherwise.* 

* I have not seen any accurate notes of what fell from Lord Chancellor 
£ldoo at the final moving of judgment in the late case of Pittenweem ; 
but from such an account of his Lordship's obeervi^ons as I have seen, 
they do not appear to exclude the competency of a reduction within the 
staitutory period. 



86s BEVIEW BY COURT OF SESSION. 

against an election in due time, that, before the decision of 
the question, another election is made the following year by 
the magistrates, whose right is sub Judice ; which second 
dection has not been challenged within the statutory period. 
In these circumstances, the question arises, whether there is 
any longer an interest to insist in the first pxxsess ; and this 
question has been held mainly to depend on the farther point, 
whether, as the second election has not been challenged with- 
in the statutory period, it can now be influenced by the re^ 
duction of the first. This questiotLoccurred ifi a case from 
St Andrews's ^, and another from Widi ', about the same time. 
In the former of these, we are informed by Lord KiUcerran, 
that the Court thouf^t it still competent to go (m with the 
first complaint, on the ground, that ^ though the election 

* 1746 (the second election) could not now be quarrelled for 
^ any wrong done thereat ; yet should the election 1745 be 
^ reduced, it was still competent to quarrel the election 
^ 1746 at common law, for want of power in the electors.^ 
In the case of Wick also, the Court proceeded with the 
first complaint in the same circumstances. 

In a subsequent case from Jedburgh, the Court, in the 
Uke situation, again repelled the objection to pEooeeding with 
the complaint against the first election '. 

In this last mentioned case, the view which seems to have, 

^ Mason and othen «. Magistrates of St Andrew^ lath Febniafy 
1747 ; KilL p. 107- • 

* Anderson o. Sinclair, 28tl& February 1747 ; Falc and Eldu No. 14, 
Bur. Bo/. 

' Marshall and Dick «. Cane, 4Ui December 1782 ; Fae. The follow- 
ing are Lord Hailea*s notes of what fell £nom the Judges on this ooea- 
sion ^^' Gatrdmuitne. The defence is indecent. A regular eompfadai Is 
i brought; and jet it is said that the Court cannot judge of it» becauw no 

* consequences can follow fixim their judgment I am not of tibel opinion. 

* Great consequences must follow, if the election 1781 is void. The octlqgi 
' of the magistrates elected in 1781 must be void. We are not called to 
'judgeof the validitj of the election 1782; but we must try the complaint 

* before us as to the election 1781. In the comphdnt there is n coadusleB 
' for costs ; and there is also another conclusion, which no subsequent 



ELECTION, WHEN PREVIOUS CHALLENGED. 868 

to a great extent, prevailed with the Court, was, that, when 
the first election should be reduced, the seomd would fall of 
course, in virtue of the maxim resolutojure dantis rescivUur 

' election can set aside ; ^ for such relief as the Court shall see cause to 
'^ gi^e.* This may, and ought to he, a fine against the offenders. The 
' bribe bargained for was great, and, at tlus season, the necessities of the 
^ poor are great.* 

*- BrtuefieltL By the statute 16th Geo. II., proceedings at common law 
*■ were superseded, and proceedings must be according to the statute. 
' Hence the judgment of the House of Peers, in the case of Anstruther, 

* was right The complainers ther^ had the statutory remedy, which they 
*• did not use in a proper manner. But the question is, how that judg- 
^ ment can apply to the present case. A complaint is n^larly brought. 
*• Suppose the fact to be, that all the complainers are turned out at Mi. 
^ chaelmas 1781, by dilatory defences, and appeals, the cause is hung up till 
*• after Michaelmas 1782 ; the complainers have no right by statute to 
*' complain of that election ; and so, by the defenders' argument, he who 
' protracts the determination of a cause, is sure to win it ; if so, nothing 

' but want of money can make a cause to be lost T*hi$ was not the** 

* meaning of the statute. That statute did not mean to abrc^ate the 

* principles of the law of Scotland. It prescribes the form of actions; but 

* it says nothing as to their consequences. It is an universal rule, that 
' reaoiuto jure dantis, retolvUur jus aecipierUis ; and there was no need 
^ for the legislature to declare this principle. Another principle is, peiu 
^ dente hie mhU innovandum^ the defender cannot make the condition of the 
^ pursuer worse than it was. I should incline to think, that if the only 
*' question were as to costs, the cause could not proceed ; for the costs have 
' already been offered back ; no good sign of the goodness of the cause.' 

' Mohboddo* If all the council had' been corrupted, would it have been 

* said that no action lay at common law ?' 

* HaUet. We must not suppose the defenders guilty, until they are 
*• proved to be guilty ; so the question of inflicting penalties is premature. 

* (This alludes to Lord Gardenstone*s hasty determination). It is obvious 
^ that the defenders have been ly\ng in wait for the defence that they 

* BOW make. Under various excuses, they put off their answers from day 
*• to day ; but just as two months had elapsed after a new election, they 

* lodged their answers ; and objected that the complaint could not now be 
' effectually heard and determined. If this is law, it is plain that he who 

* has money enough, and art enough, to keep back a cause for a year, wins 
*• it, and may sit down and enjoy the fruits of his own wrong. At any 
^ rate, the question here cannot be limited to costs ; for supposing that 
' the defenders should be found guilty, there may be a fine imposed, as 



364 REVIEW BY COURT OF SESSION. 

Jus accipieniis. From this view, it might perhaps be infer- 
red, that no new action would be neoeasary for the purpose 
of setting aside the second election on the reduction of the 
first ; but that the second would fall per sCy as being de- 
prived of the whole foundation on which it rested ; and that 
there would thus be inunediately room for the intervention of a 
royal warrant. This, however, does not appear to be a just 
idea of the effect of the first reduction ; and perhaps it was not 
intended by the Court that such an inference should be drawn. 
In the account of the case of St Andrew^s by Lord Kilker- 
ran, an action at common law is evidently regarded as 

^ well for the cause itself, as for the conduct of the cause ; and there majr 
^ be a notification of the judgment to the public at huge. Besides the 

* cause must go on ; for if it is dismissed, the defiance of those men who 

* hardly pretend to innocence, must be defrayed out of the revoiuea of 
' this unhappy borough.* 

*• £si^iroo$. There is a doubt proposed to the oompeiencif of this complunt ; 
' as to the f^lmnuy there is none. It is olyected, that, by the interme- 
*■ diate Michaelmas election not complained o( res devenU m ahum oamm> 

* Nothing is said against the complainers ; but it is said, that the parties 
< complained upon have frustrated the complaint This is singular ! the 

* maidm, pend0fU$ Hie nihii mnovandum, is applicable to every case. If the 
*JM election was brought jtbout by bribery, so also was the seeamL Can 
^ the continuation of a wrong protect its authors ? We are not to enquire 

* at present what will be the consequences of reducing the first ejection. 

* The principle remtiuio Jure dmUiSf &c. is not shaken ; nor was it meant 

* that it should be shaken, by any statute. The case of Anstruther, de- 
« termined in the House of Lords, does not apply to this ; for there a com- 
*• plaint was exhibited, and cast on infi>rmalities. Then an action was 
^ brought at common law, after the two months ; but it still related 
( to things that fell under the statute, and which might have been tried 
« under the statute, had the complainers laid their complaint properly. 

* Here the complainers sought their remedy in the right form, and no ex* 
^ cepUon is taken against the complaint It is only said, that the defimd- 
*" en have, by their own delays, rendered the complaint elusory, and won 
^ their cause without a hearing. 

*" JutHoe^CIerk, Much has been said prematurely. I am indifierent as to 
^ consequences. I must go on as the law directs.* 

* On the 6th December 1782, the Lords repelled the preliminary ol^* 
' tion, and allowed a proof of the complaint* 



PROSPECTIVE DECLARATOR. 365 

necessary, although beyond the statutory period ; and it is 
fixed law, that, where a person derives a title from one non 
habente potestaiem^ a reduction is necessary, and the nullity 
cannot be pled by way of exception ^ It is true that judg- 
ment will go in the second action as a matter of course ; but 
still the legal process seems necessary '. 

Thare is another common law process which is not struck 
at by the statutes, viz. an action for the purpose, not of set- 
ting aside any particular election, but of declaring that certain 

* Stair, p. 622. 

' There are several instances of complaints having been brought in due 
time against the second election, on the ground that the first was under 
challenge ; as in a case from Pittenweem, of which the following abtidged 
account is given in a note by Sir Ilay Campbell on one of his session 
papers : — ' In case of Pittenweem, challenge on bribery at Michaelmas 
^ election 1765. Not finished till after new election 1766. Complaint pre- 
' ferred, 21 st November 1766, to reduce new election made on 23d Septem* 
' ber, as being made by persons who, on account of the viHum remU attend- 
*• ing their election, had no power or authority to appoint their successors. 
*• Court, 20th January 1767) in respect of the decreet of reduction pro- 
* nounced in the former complaint of the election of magistrates and coun- 
*' cillors made at Michaelmas 1765, sustained the reasons of reduction of 
' election 1766, and decerned accordingly.* See this case also 16th July 
1774 ; Fac. Coll. Strictly speaking, there seems some inconsistence in 
* admitting a complaint in such a case ; for to concede that this case is one 
which admits of the form of complaint against the second election, is to 
weaken one principal ground on which the second election may be chal- 
lenged after the usual time, viz. that it does not fidl within the statutes. 
It is not, properly speaking, a wrong done, in the sense of the statutes, for 
magistrates to proceed to election, according to the usual form, whilst 
their own election is under challenge, but has not yet been set aside ; and 
there is, therefore, room for the common law principle, by which, when 
the granter's right is resolved, that of the receiver's is resolved also. 
In the words of Lord Gardenstone, in one instance, the statutes only apply 
to the case of ' legol magistrates who do wrong.* In the case of Wick, 
p. 362, a reduction was brought in due time, of the second election, by the 
same parties who had challenged the first, on the ground that the first 
was under challenge ; but this reduction was cast on certain informalities, 
and so the question arose, as already stated, with respect to the power of 
proceeding with the original complaint. 



366 REVIEW BY COURT OF SESSION. 

rules, which it is allied have been improperly neglected, 
shall be observed in elections for the future. This process 
has frequently been found to be competent to the burgesses 
at large, when they had a direct interest in the particular 
conclusions of the action ; but it farther seems to be held, 
that this action is also competent to them, even where they 
have no peculiar interest of. this description ^ It may be 
proper to inquire a little into the nature of the interest, both 
direct and indirect, which burgesses may have in the elecs 
tions of their magistrates ; and into the practice of the Court 
in sustaining processes at their instance. 

There is a direct interest vested in the whole or a part of 
he burgesses, in certain cases arising out of the constitution 
of the boroughs to which they belong. By the constitution 
of some boroughs, the burgesses have a direct right of dec- 
tion of magistrates or councillors from leets, as in Rutheiglen, 
Anstruther-Easter, and Kilrenny. Many also elect deacons 
of incorporations, who ex offdo are members of council. In 
all such cases, there is evidently a direct interest in the elec- 
tions, to the extent of the right of electing, vested in the 
whole or a part of the burgesses ; and this interest seems of 
itself, and independently of the general character of buigess- 
ship, to give rise to a sufficient title to insist in a common law 
process, of the nature above mentioned, in so far as the action 
may conclude for rendering effectual the particular right in 
which the pursuer has an interest. The buigesses, or some 
particular portion of them, have also a direct interest to make 
good their rights, as the body out of which certain office- 
bearers may, by the constitution of the burgh, be digibk. 
There are a variety of examples of actions, in which the 
pursuers had an interest of these descriptions; and these 
instances chiefly occur after the date of the statutes^ the ex- 
amples of actions at the instance of simple burgesses before 
the date of the statutes being very few. A case occurred in 

I MiU P. MagUtrates of Montrose, 28th Januanr 1824; Sluw. 



PROSPECTIVE DECLARATOR. 867 

1673, in which an objection was stated to the title ; but the 
question did not come to a decision. The action was a deda- 
nitor and reduction, brought by certain ' merchants and 

* tradesmen'' of Edinburgh against Sir Andrew Ramsay, Lord 
AbbotsbaH, who bad been elected provost. The declarator 
only was insisted in, and the conclusions were, that the magis- 
trates should be yearly changed— that no person higher than 
a merchant should be elected provost— and that, therefore. Sir 
Andrew should be in future incapacitated. Beside a defence 
on the merits, objecti<»is were stated to the action, on account 
of alleged want of interest in the pursuers, and of the popu« 
lar nature of the process ^. The case was afterwards compro- 
mised '. The merchants seem to have had a direct interest in 
this case^ in so far, at least, as regarded the declarator, be- 
cause the provost and magistrates were eligible from among 
diem by the set of James VI. ; but the direct interest of the 
trades is not so apparent. 

There is also an instance of a declarator, in the year 1681, 
brought, as Lord Stair^s report bears, by certain * bailies and 

* burgesses of Stirlii^,^ against the provost and other magis- 
trates of the town, concluding, that they had done wrong in 

' It was alleged for the Lord Abbotshall, &c. that this declarator could 

* not he oostained, because the pumiers had no interest to insist therein ; 
' it being of its own nature a popular licencey and tending to sedition and 
^ scandal, thereby to bring magistrates into contempt with the inhabitants, 

* so could not be the ground of an ordinary action ; but in the case of de- 
' linquencj of magistrates, the same ought to be represented to the king 

* or hia privy council, who, after trial, might take order, and detennlde 
^thereuntiL* 

* The Lords finding both parties willing to waive decision, * seeing it 

* might occasion great dlvinons in the town, who, for the most part, were 

* all interested in the event of this plea,' desired them to name arbiters ; 
and they named the Chancellor and the President of Sesdon, who or- 
dained an act to be passed in council, * that no provost should continue 
*' in office above two years, but might be put on the leets afler he had con- 
*■ tinued one year in office.' Johnstone, Kinloch, and others, merdumts 
and tnidesmen in Edinburgh, v. Sir Andrew Ramsay, Lord Abbotshall, 
88lh February 1878; Gosford, Sup. toMor. v. i. p. 688. 



368 REVIEW BY COURT OF SESSION. 

perpetuating themselves in the magistracy, and had not ob- 
served the custom of the town, ' whereby the guildry did 
yearly offer seven persons to be of the new council, which the 
town was accustomed to accept.^ No objection appears to 
have been stated to the title of any of the pursuers ; and af- 
ter a debate on the merits, the (3ourt pronounced certain 
findings ; and, amongst the rest, that a major part of the 
council, viz, * seven merchamts and four tradesmen,^ should be 
changed yearly. The guild-burgesses had an evident interest 
to insist in this, action, and the finding concerned both 
them and the trad^\ 

Since the date of the statutes, the right of burgesses to 
pursue a general declaratory action as to the future conduct 
of elections of magistrates, has been sanctioned both in the 
Court of Session and in the House of Lords, in a variety of 
instances, where there was an interest of that nature which 
has been described above. By the charter of erection of 
Wick, the right of election of ma^strates is^given * liberis 
* inhaUtantibus et burgensibus,^ and the office-bearers are re> 
quired to be residenters. In 1716, a set was framed by the 
Conventicxi, introducing considerable restrictions on the poQ- 
right of election. An action was therefore brought by certain 
burgesses of Wick against the ma^strates, in whose favour 
the restrictions were conceived, concluding that the elections 
ought in future to proceed according to the charter of erec- 
tion; and, in particular, that none but resident burgesses 
should be elected magistrates or coundllors. No objection ' 
was stated either to the title or shape of the action ; and 
judgment was pronounced on the merits of the case '• 

A declarator was brought by certain burgesses of Forres^ 
against the magistrates of that town*, concluding that none 

1 Jack o. Town of Stirling, 27th January 1681 ; Stair. 

' Anderson and others v. Sinclair, 1749 ; Kilk. p. UO and 400 ; Kaimei*s 
Rem. DecSs. p. 192 ; and Falc. See the judgment on the merits, jvpw, 
p. 314, 315, 321. 



PROSPECTIVE DECLARATOR. S69 

should be eapoUe of being eketed ooimciUors but residetit 
bui^gesses. The interest here is manifest, witfi respciet to 
such of the pursuers as were rettdent burgesses. No oib)e<^. 
don was stated either to the shape of the action or to the 
title of the pursuers ; and the Court pronounced judgment, 
finding residence was not necessary ^. 

In the year 1783, the total number of burgesses and in^ 
habitants on the tax-roll oi the borough of Nairn was ftld. 
Of that number, 182 brought an action of dedarotor against 
the magistrates and council and remanent burgesses, proceed- 
ing on the narrative, that, by the ccHnmon and statute law of 
the land, as well as by the usage of the boroughs in general, 
and of Nairn in particular, magistrates and councillors ought 
to be chosen from among resident burgesses, and condudii^, 
mi^ aUoj that this rule should be observed in future. No 
objection appears to have been stated to the title of the pur- 
suers ; and the Cpurt of Session, and afterwards the House 
of Lords, pronounced judgments, finding, irUer alia, that cer- 
tain oi the magistrates must be chosen from among resident 
burgesses ^ 

About the same time, an acti<m of reduction and declaroi. 
tor, which has been already noticed, was brought by certain 
burgesses of the town of Anstruther- Wester, more than two 
months from the annual election of 1788, concluding for re- 
duction of that election on various grounds, and also that 
it should be found and declared, inter aiia^ that no persons 
should in future be capable of electing or being elected ma- 
gistrates or councillors of the burgh, but resident and habile 
burgesses, bdng merchants or other tradesmen therein, and 
that persons who exercised the office of magistrate or council- 
lor in any other borough should be ineligible. The title was 

^ Dunbar and others o. Madeod and others, 7th January 1757 ; Fac. 

* Forbe9 and oUiers v. Munro and otfaera, decided in the Court of Sea. 

sion, 22d July 1784, and in the House of Lorda, 8d May 1785. See this 

case at greater length, mptra^ p. S16. 

A a 



370 BEVIKW JBT COUBT OF SBfl&ION. 

ol^ected to, or the ground thai the acts 7th attd 16th Geo. IL 
admUfod ooij comtk,vkmt m Lord 

JBimfield foiwd that th^ purta^m had no titl« tp uisiat in the 
sedu^tiQa, and acquitted the defenders ftonthe reduotiTe coD- 
dixmjfDBf* reaerviog to tbcspursuers to ipstt^inthedficLaratory 
< part of their libel^ and to amend the aamo^ it thqi sballbe 

* 8o advised." An appeal was taken directly from this interlo- 
cutor to the House of Lords, and it was there affinned>* 

From this series, of cases, as vdl as upon principle, tfaae 
can be no doubt of the ri^ of borgeases to insist in sudi s 
prospediTe dedarata^ action, where their inteisst is of the 
desonption wfaidi appears in thoee cases. 

But .tide faittber questim arises, whether,, where tb^v is no 
siAcbivdiiisetinterest, the burgesses still have a r^it to insist in 
this kmdof action ? There is a kind of indkeqt interest arising 
to buj^gesses in the election of magistrates, from more than 
one source, ^hejr have, for instance, a rapote oonoem with 

^ Rob and others v. Thomson and others, decided by Lord Braxfield on 
the 19th February 1)85, and by the House of Lords on the 86th April 17Ww 
See Appeal Cases in Advocates' Library 1786, No. 18, and Sup. to Wight, 
p^ lifi, slsQ wpra^^p.. 366. The case of Wlgton^ «1wh seems to Imrt lieen 
decJided on a shnilar princ^le. The action was a reduction and declarator, 
and concluded for the voiding of an election, and also to have it declared 
that Michaelmas day should be the roll-day of election ; that none but re- 
sideiiters should be magistrates and councillors ; that no peer siioald be 
etigibk ta thess situaiaons ; besides a variety of other dedantAiy condu- 
sioxu. According to Mr Wight, p. 340, the Court refused to sust^n the 
title of the pursuers to insist in the reduction, on the ground that the 
statutes gave the right only to constituent members of certain meetings, 
and assoibsied from the reductive conclusion, thereby leaving it to be in- 
ftnwd^that the dedantory conclusions were competent to the burgeases ; 
Coww, ap4 oth«r9 o. Magist^tes of Wigton, 8Sd June 1788, ScasiaD Pa. 
pers. The Faculty Report, however, states generally, that the action was 
dismissed as incompetent ; but the other account seems more conformable 
to the<ca^i^,menUoM in the text, at lea9t with respect to some of the 
cQQfli)||i<}^. See.aifo Mr WighVs account of this deciaoo in the fint 

* Ret^^* in, the reffpoadeoVs case on appeal, in the West AniUruther 

question, and Lord HaUes* Notes of the Case, asjira, p. 300. 



PROSP£CTIT£ DECIiARATOft. 371 

the generalfiiiid» at the borough^ wiath are under the cqii«> 
tfoul of the magMtrates ; but as before the late act of Sd 
Gea IV. a 91> which: gave burgesses a right of oo]b|ilaiiit 
against the accounts of magistrates, the Court refused to sust^ 
tain their tide to insist in an action: of acconntBig n^punst 
their dvic rulers-^ ; so neither can there exiat.' any right of 
controul en this ground over the etectiosa of those who 
have the charge of those funds. An* indzreot^ interest also 
arises from their general ocmeem as burgesses ii& the mode of 
govenunsnt of die borough itself. Every one of them nu^ 
be saJd to have a right to insistt that he shall be governed a& 
oording to law ; and) eonsequendj, to maintain any lustisn 
far coirecdng a practice whidi is contrary to law. We have 
a very old example of an action brought in 1690 at tfae^in- 
stance of the» Lord Advocate, and of a considerable number 
of persons, ^ bui^iesses, and craftsmen of the burgh of Aber- 

* deen, and ibr diemselves and lemanoit burgesses, craftsmen^ 

* and community of the said burgh,^ against the magistrates 
and councfl^ setting forth that the defenders had continued 
themselves in office, without lawful change, and concluding 
that the ekcftioiiB shice 1560 should be declared void, and 
that the magistvates and council dhould not in future continue 
more than a year. Bo fair' tfn appears, no objection was stated 
to the tide of any of the pursuers, and the Coiut pronounced 
a judgment on the ^Ist January I59I9 by which * they dis« 
^ charged the action fbr declaring the Section void fit>m 1560 

* to 1590^ without giving any reason for the judgment ; and 

* ordeved duit, in all time coming, the elections should be in 

* terms i of the acts of Parliament^ 

In a late instance^ the Court sustained the right cf a bur- 
gess to insist in an action of reduction of a new set granted 

* Cue of Inveniry, 14th Becember 1820 ; Fac. See also Enldne, b. L 
tit. 1. )tct' S8 ; and Oilchrist v. Magistrates of Kinghorn, 5th March 
1771 ; Pac 

* See Report of the Committee of House of Commons 1793, p. 7-»» 

a2 



872 REVIEW BY COUET OF SES8IOV. 

by the crown to the borough of Montrose, although it wm 
urged in defence that he had no greater indiyidual interest in 
the old set which he sought to re-establish than in the new ; 
but, on the contrary, that the latter was of a more popular 
nature than the former, and his private interest was therefore 
rather the reverse of what he sought to establish. The view 
which seems to have prevailed with the Court was, that * every 
^ individual burgess has an interest and title to insist that the 
* borough shall be governed according to law *? This judg- 
ment was reversed on appeal ; but that reversal proceeded on 
another objection, which was made to the title of the pursuer, 
viz. that he bad acquiesced in the new set, by availii^ him- 
self of the privily of voting under it, a privilege which he 
did not possess under the old '. 

The principle of this case, as decided in the Court of Ses- 
sion, seems to extend to aU actions of a decUratory nature, 
having for their object the correction of practices contrary to 
law connected with the sets of borou^s. 

This action, having a prospective operation as to future 
elections, oocasionally assumes the shape of a reduction of 
some act of the town-council, which is thou^t to interfeie 
with the privileges of the various persons interested in the 
elections; and the same persons appear to have a title to in- 
sist in such an action, as to pursue a declarator, having a si- 
milar object. An instance of this process of reduction oc- 
curred in a case from Ruther^en formerly noticed^ where 
the action was insisted in by certain coundUors, for them- 
selves, and in behalf of the other burgesses, and concluded 
for reduction of an act of council, rescinding a previous act 
which excluded town debtors from voting, and of another act, 
introdudng some strict rules as to residence ^. The burgesses 

1 Mill «. H^iftnites of MontnMe, 88th Jan. 18S4 ; Sfaav and Fae. 

* That thifl WM the ground of the reversal appears fipom the speech of 
Lord Giffbrd at moving the reveml ; of which speech I have seen notea> 

' Urie and others v. Magistrates and a part of the Council of Buthcr. 
glen, July 17G6 ; Session Papers. See ««pr«, p. 3Sa 



OF COMPLAINT. 87S 

fdone would have had a title to reduce the act as to residence, 
from the immediate concern which they had by the set in the 
elecdons, by preparing leets for the choice of coundllors, and 
perhaps both acts, from their general interest as burgesses. 

Having thus considered the nature of some of those pro- 
cesses whidi are competent at common law respecting borough 
elections, it remains to direct our attention to various parti- 
culars r^arding the statutory remedy of complaint. 

The complaint must, by the statute 16th Greo. II. sect. M, 
^ be presented to the said Court of Session within two ka- 
' lendar months after the annual election of the magistrates 
* and councillors.^ This period is estimated from the last 
step of election, although the particular wrong complained of 
may have happened beyond the two months ^. 

From the time of the year at which the annual borough 
elections take place, it can rarely happen that the Court of 
Session shall not sit before the lapse of the two months ; but 
such a case occurred, in one instance, from the burgh of Pit- 
tenweem, and a question arose under it, attended with special 
circumstances. 

In this case, the annual election was held on the 10th Sep- 
tember, and the Court of Session did not meet till the 12th 
of November. The complaint, however, was lodged with one 
of the clerks of Court upon the 9th November, and, on the 
same day, which was the regular day for putting into the 
Judges' boxes those petitions which were to be moved in Court 
at their first diet, printed copies of the complaint were put in- 
to those boxes. In these circumstances, although it was 
urged that no complaint could be lodged in vacation time, 
that objection was overruled *. Mr Wight, however, adds, 

> Wight, p. 337. 

* Rsmflay and others o« Martin and othen, 14th December 1766, affirm- 
ed on appeal 7th February 1766 ; Wight, p. 33a The following note of 
the opiniona of the Judges in this case was taken by Sir Iky Campbell. 
^ Competency..— CoaMtowi. Repel for two reasons. 1. JVim valens agmre. 
^ 2. Falls under not only meaning but express words of the act^—Pi^ 



874 



OF COMPLAINT. 



Uiat if the)two monlfas had expired before the 9th, no oom^ 
plaint could have been reeeiyed. 

In a. flubaequent case, from Selkirk, the Court, preoeediag 
on the words of the statute, which require that the comphnnt 
shall be ^ presmUd to Ae ^aid Court cf Sesncm witfam two 
* kalflndar xnoBtha,^ waere of opinioD, that, although acom- 
jdaint was marked on the last day of the two monthe by the 
clerk of Court, in this form, ' Eo die presented^ and was on 
the same day marked by the collector of the feeJund, and 
by one of the Judges^ Clerics, and ako put into the Judges* 
boxes, it was not ^uffiriently presented uidess moved in Court 
on that day, and t therefore .dismissed the comphiint K Theire 

four. Dangerous to sustain the non valerUitu Makes things extremelj ar- 
bitrary. For superseding till action comes on^-^^GaHenHone. Not a ques- 
tion of preactiption, but privilege. Cannot by equitable constnieCion ex- 
tend the privili^ge, statute our vairant. — PrrndtmL Not a pseaerip- 
tion, but yet for r^ielUng. Prlyilege intended for disability. Purview 
of the act, to give a privilege to the lieges ; to give summar dispatch. 
One act of Parliament did not mean to alter the other. Suppose a per- 
0on coming with a compbiint dies, a complaint delayed twenty-fimr 
hours. Done all that thev could. Presenting to clerk stopa daja of re- 
claiming. Days do not run in the vacation. JuHtee'Clerk, Day of elec- 
tion is any Tuesday of September after first Tuesday. Had it in view to 
take this advantage.' * 14th December 1765.— iVwft^. Deed 

of the town itself, for might have made it third Tuesday. Ought to 
stick tenadoualy to the law in such cuea^-^Bmyarff, Suppose any aoci- * 
dent happens, action drowned.— Xomm*. Law means to give a benefit, 
circumscribed in two kalendar months. If not, complainer is understood 
to renounce. Supposed to be possible. Spirit of the law. Have brought 
my complaint gumnprimum. Can I be forfeited of my privilege without 
my fhult f'-^PrendenL In case of claims, never cut out if two or three 
days ai)lfer.-*Garrf0n«lofi«. No boundary to st<^ at— Pfrntd^n/. What if 
not a quorum first day of the session ?^Coalsivun. Distinction between 
a prescription and a privil^e thin. Nan vaUna agert implied in all the 
acts concerning prescription. A fortiori in a privilege. Words of act of 
Pariiament^BavTor^. Act relates to obligations.— JTamey. Minority de- 
duced.* * llepel' 

' Henderson and others v. Lang and others, )d July ltt21 ; Fac. 
*■ Shaw, and Sesaon Papers. 



WHO maV complain. 875 

18 oerUHnly a distinction between this case and the preceding, 
imsnittch as, in thepreoedkig, the complainer did all that lay 
in his power to present his oompkdnt in prop^ thne, the 
Court not meeting till after the lapse of the period ; but, in- 
deed, if it is to be held that the statute Impantivdy requires 
fUODing in Court as presentment, it may be doubted whether 
the Court can dispense with that requisite, even under cir- 
inrcumstances such as those in the case from Fittenweem. 

In a case ftyim St Andrew^ the annual election had been 
finished <ri the 8th Ck^ber, but subsequently three of the 
councillors having reftised to accept, a certain number of the 
council, without summoning the rest, chose three new coun- 
cillors, who had not been,' as the set required, of the old coun- 
ciL A oomjdaint was presented on the 18th December 
against this proceeding. A majority of the Court thought 
that the wrong complained of did not fall under the act 16th 
Gr€o. II ; but the ground on which the complaint was refused 
was, that mare than two months had elapsed from the an- 
nual election '. 

The next point which requires consideration, regards the 
parties to whom the statutory complaint is competent By 
the act, the right is given to < any constituent manber at any 

* meeting for election of magistrates or councillors, or of any 

* meeting previous to that for the election of magistrates and 

* councillors respectively, who shall apprehend any wrong to 

* have been done by the majority of such meeting '. 

It is only constituent members of the town-coundl who 
have the right of complaining under this clause, in so fiur as 
regards the election of magistrates, or of councillors who are 
not deacons. In so far as respects that election, the members 
of the subordinate corporations, even where their deacons are 
or qffido councillors, have no title to complain. These 

< Glass o. Magistrates of St Andrew's, 27th February 1754 ; Elchies, 
Bur. Roy. No. 40. 
• leth Geo. II. c. 11. seel. 24. 



376 OF COMPLAINT. 

prioeiples taUow from the caae of Lawrie against the Magis- 
trates of Edi^urgh ; but a fSarther oondunon might perhaps 
be drawn from that case, that, even in questions relating ta 
the elation of deacons who are ea: officio coundUors, it was not 
oompetent for members of the craft to appear as compbiners 
under the statute : for, in that case, it was dedded that 
oQnstitui^nt members of the meetings of incorporations for the 
election of deacons, although these deacons were ex pfido 
members either of the ordinary or extraordinary council of 
Edinburgh, had no title to insist in a complaint dther against 
an election of any of the magistrates or councillors, or agsiiial 
certain allegjsd wrongs in the leeting for deacons ^ But whe. 

^ In the cue of Lawrie v. the Mag^ntes of Edinburgh, the coin{daiii- 
era Were, * Alexander Lawrie, present deacon of Boimet-maken of Edin-' 
' bux^g^h s James Anderson, present deacon of the Incorporation of CordU 

* nera of Edinburgh ; Alexander Henderson* late deacon of the Incorpo. 

* ration of Goldsmiths of Edinbui^h ; James Gibson, late deacon of the 
' Incbrpontion of Bonnet-makers, all constituent members of the meetings 
< toe the annual election of deacons and magistrates for the dtj of Edin- 

* burgh, in the month of September last i* and forty-seven other perBona, 
' constituent members of various incorporations, in which meetings for 
^ elections of deacons were held during the course of the said month of 
*■ September, and members of the Merchant Company,* &c. The election 
challenged commenced on the 10th September 1S17* Alexander liSwrie 
was presented in council as deacon of his crsft on the 17th September, 
and, as such, had the right of voting at the final meeting- James Ander. 
son was in the like situation, with the additional circumstance that he 
was, on the same day, chosen one of the six council deacons. Alexander 
Henderson was one of the six council deacons of the preceding year, and, 
as such, was a member of all the election m^tings till the 17th. James 
Gibson was an extraordinary deacon of the preceding year, and attended 
the meetings of 10th and 12th September, but, as the respondents alkged, 
merely ministerially, in relation to the leeting for deacons. By the set, 
however, he had a right of voting in various meetings previous to those 
Hex election. The alleged wrongs brought under review in this compUdnt 
relatied both to the election of magistrates and councillors, and also to tlie 
leeting for various deacons of the different incorporations. Thus it was 
maintained, that an unqualified person had been put on the Icet fc>r the 
deacon of the skinners, both in the crail and in the shortening bj Uie 
town-council ; and that the old deacons ought to have been continued by 



WHO MAY COMPLAIN. 877 

ther or not such a judgment may be held to have been well 
founded in regard to the election of deacons, in the spedai 
dfcumatances of that case, it does not i4)pear that it can be 
held to affect the title of an unsuccessful candidate for the 
office of a deacon ex officio a councillor, and of the other mem- 
bers of th&eraft, to complain under the statute vi an alleged 
wrong done by the council at an annual election of magis- 
trates, in relation to the ordinary election of a deacon, con- 
tested by rival candidates for that office. Such a case has 
been in several instances held to be one which may be made 
the subject of complaint under the statute ^; and the question 
arises, to whom is the complaint competent. The contested 
election in the craft is subject to the review of the town- 
council, in the first instance ; and any judgment on the sub- 
ject thought to be erroneous may undoubtedly be brought 
before the Court of Session by complaint, by any constituent 
member of the towD-council. But it may so happen that no 
member of that body is disposed to take such a step, as, for 
instance, in the case of a unanimous decision ; and, in, that 
case, if the privilege of complaint is denied to the candidate 
for the office of deacon, who has been rgected by the coun- 
dl, but who may truly have had the majority of good votes 
of his incorporation, that mode of redress is entirely prevent- 
ed ; and, indeed, although it is believed to be common to try 
such questions by common law processes, as by suspension, 
yet, strictly speaking, it may be argued that such common 

the council cm aU the leeta. No objections on those scores were, however, 
stated befoie the councU* The Court pronounced judgment in these 
terms : * Find that none of the complatners except Alexander Lawrie, 
*• James Aadenon, Alexander Henderson, and James Gibson, have any 
^ tHle to insist in the complaints ; and, in so fiff as regards the other com- 
* phineiB, besides the sidd four persons, dismiss the complaints, and de« 
*' ctftt.' Tliey also suljfected the other complainers in the expence of 
disnmsing their title. Lawrie and others o. Magistrates of Edinburgh, 
6lh June 1818. Session Fillers. 
^ See ktfm, p. 884. 



378 OF COHPIiAINT. 

Uw remedies are inoompeCeDt, becsoae sucfa an election has 
been found to be within the statute. Acodrdinglytbefe are 
seyeral cases in which eompliunts have been brooght under 
the statute, at the iaslanoe* of unsucoessf ut candidates for the 
office of deacon, and of members of the incorporation, witii- 
out any objection to title having been stated ^ 

Where the burgesses at large have, by the constttutioii of 
a borough, a direct share in the election of magistrates and 
council, a complaint is competent to them, under the statute, 
against that election, as constituent tnembers of tiie meeting. 
Of this we have an instance from the borough of Wick *. 

It is held not to be necessary that the constituent ntfembetv 
vfbo complain shall have been present at the meeting '. 

Whilst a comphiint is depending in Court, it may scnaetinEies 
happen that the poKticai views and interests of the parties are 
entirely changed; and the defenders become as anxious as the 
pursuers formerly were, to forward the ol^ects of the action. 
In such a case, however, it is held, that, when the oomjdainers 
abandon the case, it is not competent for the respondentia dther 
to inast for farther discusdom on the merits, or to sist them- 

^ In a case from Inverkeithing in 1777i mentioned bjr Mr Wight, 
p. 342, it appears from tbe SeMion Papers that the eompbdnt was soldy at 
the instance of the eaadidate who had been chosen deacon hy his ctaft, but 
had not been received hy the town-counciL It is ermneous|j supposed by 
Mr Wight, p. 341, that this deacon was not ex qfido a member of council ; 
see in/rtk, p. 384. In another case from Perth in 1780, mentioned infrny 
p. S86. the complaint was in the name of the candidate who had been un- 
suocessail both in his incorporation and before the town-councU, aad alao 
in the naoMS of a kte baaUe, aad of fourteen members of the craft N<» 
olgection to Ude speciallj, appears to have been|atated. In a very kte 
case aUo finom Selkirk, the compUunt was at the instance of tiie mndidstft 
who had been chosen by the appaient mi^jority of the ciafl, but who had 
been nrjected bj the town^souncil, and of sevenl persens, offioeiteWBn 
and freemen of the craft No olgection to the title was otaled. Hope «\ 
Magistrates of Selkirk, 31st January 18S6 ; Shaw and Fac. 

' Anderson o. Sinclair, 28th February 1747 « Falc 

' Mason and otheri v. Magistrates of Montrose, 8d«nd SSth July 1747 ; 
Kilk., end of the report ; see also Wight, p. 340. 



EFFECT OF ACQUIESCENCE. 879 

selves as complainers ; but they may ask that the complaint 
shall be, de phmo^ dismissed K 

A oomjdaint against an election of magistrates and conn- 
giDotb cannot be presented in the name of a person fmrth of 
the kingdom at the time when that complaint is presented, 
anless he has granted a regular written mandate to that ef- 
fect*. 

Where an election has been made unanimously, but has af- 
terwards been challenged by some of those parties who ac- 
quiesced m those v^ proceedings now made the grounds of 
chdleBge, they have usually been met with the objection^ 
that their acquiescence constitutes a personal exception, and 
deprives them of any title to complain. Such an objectioo, 
however, has been, in numerous instances, repelled by the 
Court '. In a subsequent case, also, where a new set, which 
had been granted to the town of Montrose, by the Crown, was 
cbaUei^ed as illegal, in an action of reduction at the instance 
of a person who had himself voted under that set, the Court 
rqpelied an objection to his title to pursue, founded on this 
acquiescence \ This case was, however, reversed on appeal, 
spedally on the ground of the acquiescence^. Whether the 
principle reoognined in this judgment of the House of Lcnrds 
shall be held to be also applicable to the case of complaints 
under the act 16th Geo. II. appears to depend on the farther 
question, whether the S4th clause of that act confers a statu- 

^ Grant and otiien v. Dick and Cattenach, 0th February 1821 ; Fac. 

* AilNikle «. CampbeU Innea and othen, 11th Maorch 1826 ; affirmed on 
appeaL 

' Pattenon v. Magistrates of Stirling, Ist March 1776 ; Fac. Laurie 
and others 9. Magistrates of £dinbux]gh, StfafJune 1818 ; Fac. There are 
also many unreported cases to the same effect, as that of Harrower, from 
thebuigh of Culroas, June 2. 1812, and that 6f Montrose, in 1818-7f where 
aa anmial election was set aside, on the giound that it was conducted by 
ballot, although the complainers had themselves concurred in making use 
of this mode of voting. 

* Mill o. Magistrates of Montrose, 28th January 1824 ; Fac. 

* 28th June 1825. 



/ 



380 OF COMPLAINT. 

tory right of chaUenging wrongs done at an election meet- 
ing, even although acquiesced in by the oomj^ner. If this 
statutory right shall not be hdd to have been conferred, (hen 
the principle of the reversal must be held to apply to the case 
of complaints. 

The next question is. What parties must be called in the 
complaint ? The act provides that warrant shall be granted 

* for summoning the magistrates and councillors diected by 

* the nuyority, upon thirty days notice ^J* If any one of these 
magistrates or councillors has not been called, and does not 
appear either in the complaint as a pursuer, those circumstances 
will be fatal to the complaint. In a case where the name of 
one of the complainers was given as * John Wilson, weav^, 

* councillor,^ and it was objected that there was no such per- 
son, but that there was one ^ John Watson, weaver, coundl- 
^ lor,^ who had not been made a party to the action, cither as 
comp]ainer or defender, the objection was held to be fatal to 
the complaint, although it was stated that this person acknow- 
ledged himself to be the complainer really meant ^. From this 
case it appears that such an error in the name of one who 
ought to be a party in the case, as truly makes it a difiPerent 
name, constitutes a fatal objection ; and the same point was 
determined in a previous case, relating to a defender, whene 
the complaint prayed for a warrant to dte ^ Thomas Brown ;"* 
and although, before service, it was discovered that the true 
name was * George Brown,' and both the citation and the 
messenger's execution mentioned the mistake, it was held 
that there was no warrant to cite George Brown, and the 
complaint was dismissed '. 

It is only those magistrates who continue in office at the 
time of the complaint who must be dted ; and, if any one who 
was chosen at the general election, has since resigned, and bis 

> 16th Geo. II. c. 11. sect 24. 

* Gray and others o. Spens and othen, 24th February 1804. 

' Young and others v. Johnstone and others, Jan. 1766 ; Wi^t, p^ 338. 



\ 



IN WHAT CASES COMPETENT. 381 

place been supplied, it is not necessary that he should be called; 
for it cannot be supposed that the l^slature intended that a 
party should be summoned, even after his interest in the elec- 
tion had entirely ceased ^ 

Where a councillor is not resident within the burgh, but has 
not left Scotland, it is still requisite that he should be called^ 

As the statute has specified those parties who must be cited 
as defenders to a complaint, by prescribing that * the magis- 
^ trates and councillors elected by the majority^ shall be sum^ 
moned, it is held that, in a complaint involving the merits of 
the election of a deacon, it is not necessary to call the mem- 
bers of the craft ^. 

Although the statute has directed that certain parties shall 
be called, yet, as objections on the score of citation, are, in 
their proper nature, of a dilatory description, and are usually 
stated in the very commencement of the litigation, it is held 
that, when issue has been joined on the merits of a complaint, 
and a judgment has been pronounced, it is too late to allege 
that a party who ought to have been cited, has not been calU 
ed ^ ; but, in a case where answers had been merely lodged to 
the complaint, it was held still to be competent to state an ob- 
jection of this nature ^. 

We have next to inquire as to what wrongs may be the sub- 
jects of complaint. The statute gives the right of complaint to 
any constituent member of the election meeting, or of any pre- 
vious meeting, ^ who shall apprehend any wrong to have been 
* done by the majority of such meeting.'' It is held that the 
wrongs here alluded to are those done at the annucd election, 
or at the meetings preparaiory to that election. If a va- 

* Ittgistntes of £dinbui]gfa o. Lnurie, 27th January 1821 ; Fac. 

* Campbell and others «. Henderson and others, 24th June 1814 ; Fac. 
' Donaldson and others o. Magistrates of Kinghom, 29th July 1789 ; 

Fac Hope and others o. Magbtrates of Selkirk, Slst Jan. 1826 ; Shaw ; 
Fac 

^ Magistrates of Edinburgh, tupra. 

^ Gray v. Spens, •i^pra. 



382 OP COMPLAINT. 

cancy in the magistracy or council, by death or resignation, 
is fitted up in the course of the year, and not at the annual 
election, such a case is not within the statute. Neither does 
the act apply to the election of a person in place of one who 
was chosen at the annual election, but hasdeclined accepting^ 
Even although such intermediate elections should materidly 
affect the annual dection, the case will not be altered, if they 
are not tnilty prefforaiofy to it, i, e. made in contemplation of 
it, and- as a step towards it In one instance, at a meeting 
held for the purpose of electing a delegate, only seven per- 
sons, not forming a quorum of the council, attended, and 
supplied a vacancy in the council, which had occurred by the 
death of one of them. The annual election was afterwards 
made in September by these ei^t ; and a complaint was pre^ 
senfced, contending that both electicms were null, because se- 
ven were not a majority of the council, and therefore the ad- 
ditional person at the annual election had not been duly cho- 
sen ; . so that there had truly been a quorum at neither meet- 
ing ; and that this objection nught be stated, because it was 
an exJiuAe nullity afiecting the annual election. The Court, 
however, held that wrongs at intermediate elections eould not 
be challenged under the statute, and dismissed the oompkunt 
as incompetent^. A previous case occurred under the follow- 
ing circumstimces. By the constitution of the burgh of Cul-^ 
ross, the person who has preaded at the last meeting of coun- 
cil, previous to the annual etectioa, is entitled to preside in 
the choice of a parses for the election meeting. Sutmequently 
to the usual notice for the annual meeting, eight of the couo^ 
dl, being less than a majority, called a meeting for the 9SA 
September, the very day before the annual election, and ac- 
tually met on that day, to admit a oounciUor who had been 

^ Glasi «. Magistntesof St Andrev't, SStfa Fsbmuy ITMrEld). nd 
FacCoL 

' Gray and others v. Magistratea of Anatnitimr Wester, mh" June 
1S19; Fac CoU. 



IN WHAT CASES COMPETENT. S8S 

pceviously diosen* Oa the day following^ theae nine made 
an election of a council for the year ; and, on the same day, 
ai^ther party of nine made a separate election. The latUr 
party presented a complaint against the election of their op- 
ponents, contending that the meeting of the SiStb was illegal, 
as not having been attended by a majority of the council, 
which consists of nineteen, and that the person who presided 
at the meeting of their own party, on the 89th, bad presided 
at a meeting in July, which was the latest legitd meeting be- 
fore the aanual election, and was therefore entitled to take the 
chair at that election. No objection was stated to the compe- 
tency of the complaint, as respected any challenge of the 
meeting of the S8th ; and the Court found that meeting to be 
illegal ^y and appcnnted memorials on the other paints of the 
case. The principal circumstance of difference between this 
and the preceding case, independently of the fact that the 
competency was not objected to, was, that the meeting of the 
28th had been called and held subsequently to the notice for 
the annual meeting. 

I Although the statute mentions only wrongs ^ done by the 
majority'* of the meeting, it has been, in many cases, dedded, 
that elections which have been made unaninunislyj may, not- 
withstanding, be challenged, even by parties who concurred 
in the proceedings ^. It may, however, be questioned, whe- 
ther this principle has not now been shaken by the reversal of 
the House of Lords, in the case of Mill z;. the Magistrates of 
Montrose, in so far as regards a challenge by a party, who has 
been present at the election, and has acquiesced in it ^. 

The wrong challenged under the statute must be aposi- 

' JfeUd^'obn and others «. Maaterton and others, 98th Maj 1805; note 
to praoadiBgcsaror Graf, and Fac. CoL of date S8th Maj 1880; affinned 
€iB appeal^ Mth Maicb ISia 

> Patarsoa o. MafiittnLtm of Sttrl^;, Ist Biardi 1776; Fac lAurio 
•» MagiatxateB of £dlnbuigh, 6th June 1818; Fac There are alao iome 
unrBpoitad caaea to a similar efiect« 

' See what haa been said, ncpra, p. 379. as to the effhct of this judgment. 



S84 OF COMPLAINT. 

tive illegal act, done by the magistrates and council. Hence 
if, by the set of a borough, councillors are elected for life, the 
mere allowing them to continue on the roll at the annual elec- 
tion, although they may have become disqualified, when no 
objection has been made to their continuance, is not a wrcmg 
agttnst which a complaint can be presented under the star- 
tute K 

Several questions have occurred involving the point, how 
far allied wrongs, committed in the elections of deacons, 
may be made the subjects of complaint under the statute. In 
some boroughs these officers arc members of the town coun- 
cil ex officio ; whilst in others they are not so. 

In the former case, as the election of the deacons truly 
forms a part of the annual election, which is the primary ob- 
ject to which the statute refers, and as the proceiedings con- 
nected with the election of deacons are reviewed, in the first 
instance, by the town council, whose judgment on the sulgect, 
if erroneous, is clearly a wrong committed at the annual elec- 
tion, or a preparatory meeting, there can be no doubt as to 
the competency of a complaint ; which has, accordingly, in 
many instances, been sustained *. Even althou^ the whole 
proceedings in the election of deacons, both in the crafts and 
in the town council, should be subsequent to the meeting for 
the election of the magistrates, and other councillors for the 
year, those proceedings may be made the subject of complaint 

* Angus and others v. Montgomery and Wishort, 18th J 8011017 1817; 
Fac. ; affirmed on appeal, 3d May 1881 ; Shaw's App. Cases, voL L p. 18. 

* The case of Inverkeithing, reported by Mr Wight, p. S4SL wai ol'this 
nature, although, from what he says (p. 341.), he seems to have Umugfat 
that the councillors there were not members of council e« qfioio ; but, by 
an amendment of the set of that burgh, in 1742, the deacons were admit- 
ted councillors, on certain conditions ; and it appears from the Session Pa- 
pera, that the comphdner ^ claimed to be received as a member of coun. 
ciL In the case also of Laurie v. the Magistrates of Edinburgh, 8th June 
1818, various proceedings, both in the crafts and in the town coundl, oon< 
nected with the leeting for deacons, were made the sutjects of complaiDt. 
See also the Perth case infra. 



IN WHAT CASES COMPETENT. S85 

under the statute, if the deacons are ex qffUAo councillors for 
that jear ^ Questions, however,^of some nicety may occur as 
to whether the deacons are to be conadered as members of 
council or not, as in the following instance from Dumbarton. 
By the set of that borough, the deacons are chosen in their 
crafts on the Friday before Michaelmas, and presented in 
ooundl on the Friday after it. In the interval, the annual elec- 
tion of magistrates takes place at Michaelmas ; and the deacons 
chosen the preceding year have a vote in electing the magis- 
trates, those deacons chosen in the present year having no vote 
till the following year. A complaint was presented against the 
annual election of magistrates for 1818; and, in this com- 
plaint, the election of deacons for that year was also chal- 
lenged on an all^ation of bribery. The competency of the 
complaint was objected to, in so far as regarded the election 
<^ deacons, because, as was maintained, they were not consti- 
tuent members of the town council, had no vote in the elec- 
tion of magistrates till the following year, and would not till 

^ In a case from Perth, the meeting for the election of magistrates and 
councillors was held on the 4th October. On the 6th, the trades met, 
confbrinably to the set, to choose their deacons. In the shoemakers' craft, 
the Totes were divided between, two candidates, Mill and Wilson, the lat- 
ter ai whom was declared chosen. On the 11th, both candidates claimed 
to be received as members of the town council. The council delajed the 
coiuideratian of their respective claims. A complaint was now presented, 
under the statute, in the names of Mill, of one of the late bailies, and of 
fimrteen others all members of the incorporation of shoemakers, praying 
that Wilson's election should be declared void, and that Mill should be 
declared duly chosen, on grounds which it is unnecessary to mention. 
The competency of the complaint was objected to, on the ground that the 
statute only gave the right of challenging wrongs at the annual election, 
or at a previouM meeting, and that the annual election wlis on the 4th Oc- 
tober, and previous to the election challenged. It was answered, That, as 
Uie deacons were «r officio councillors, their election was truly a part of 
the annual election of councillors. The respondents admitted that the 
deacons were, ex officio^ entitled to a seat in council. The Court repelled 
the objection to the competency of the complaint Mill and others if. Wil- 
son and others, 16th February 1780 ; Session Papers. 

B b 



886 OF COMBLAINT. 

ihesb afipmf in oQuncik Is aiMHmr, Che oo«i|^iineni avond 
thfti the detoeoB^were oonsdtiittit meadbttn of the iomm oqud- 
dU and ware-enlttled to sit at a iwdety of meetingB of coiu»- 
dl^ and ta interpote as parties to leasefi^ and other ast& of ad- 
aunialration ^ the bofoii|^ funds^ and bad important duties 
to peifoim in auditing aooounts eloo^ wilb the eounciL Tbe 
Court,, hy the narrowest nugprity, sustained the otiyeotaoa to 
the eompetency of the axaplainty < in rsspect that the deocoas 
< elasted in the year 1818, wave not qualiied, and. did nat 
*.vote or act at the elections of nuigistitttes and oouneiUon 
* that year V It would nthor seem that^ if die avermentscf 
the oomplainers were well founded, the deacons were, to a 
cmrtain extent at least, to be viewed as oonsdtuent memhen 
oi the ooundl lor the year, the annual election of which was 
challenged ; and that, therefore, on the authority of the pve- 
cediog ease, of Perth, die oomplaiat was competent as to the 
election of deaeons^ although they bad no share in the elecdon 
cf that year* 

Where the deacons are not ex officio coundllors, it may be 
laid down as the general rule, that their election is not sub- 
ject to review by complunt, because it has no connection with 
the annual deetioni'. A concern, however, even although in- 
direet, in the election for the current year, may cause an ex- 
ception to this rule. Thus, in a case from Rutherglen, where 
the deacons^ although not ea officio councillars, have a certain 
•dqpaee of influence on the annual electian, by possessing call- 
ing votes in preparing leets, out of which the magistrateB 
choose coundllors, the Court appear to have considered this 
influence on the annual election as a su€5dent reason for sua- 
taiiMng the competency of certdn complaints reiqpecting the 
elections of deacons ^. 

^ Cdquhoun anci othen o. Dixon and others, ISth November 1818, 
Fic. GolL and Seanon Papers. 

* The case of Invetkeithing, it has been already shewn, was not ooa- 
trarj to this principle ; see fttpra, p. 384. note. 

> 19th June 1777 ; Wight, p. 342. 



WHO MAY BE WITNESSES. 387 

When a poll elecstion is gras^tod by the royal wamMit;} k is 
usual to direct the sherifiP of the c»uiiAy, and those of th^ two 
adjoining oounties^ to attend and dij^t the election, aiid to 
fonn * an authentic instrument thereupon/ to be report^ to 
his Majesty in council, for confirmation. In 8U<^ a ca^e, it 
appears not to be oompetei^ for- the Court of Session to inter- 
fere \ as the election does not take effect till Judged of by the 
Crown, and the ultiipate decision is left with tb^ King in 
council. But, in the case of Montrosef in 1746, whei« the 
right of election was given to the last magistrates and coun- 
cil, there was no appointfnent of superintendants, and no re- 
port was ordered to be made ; and, as it was argued that the 
r^t of election had not been lost, but only renewed by the 
Crown, the Court sustained their jurisdiction to take cogni- 
zance of the merits of the election ; and a complaint was held 
to be competent under the 16th Geo. IJ., because an election 
under the royal warrant was regarded as an annual election, 
t. e. as an election for the year, although not made on the an- 
niversary day *. 

It seems settled, that, in the ordinary case, a person who 
has been called as ^ defender in a complaint against an elec- 
tion of magistrates^ may be cited as a witness by the com- 
plainers '. It is, however, a necessary qualification of this rule, 
that one cannot be obliged to depone to what may infer tur- 
pitude against himself "*. Thus on an allegation of unlawful 

' See the case of Dysart, mentioned in that of Montrose; SJk. p. 105. 

^ Case of Montrose, 1747 ; Kflk. p. 104. See also Httenweem Case, p. 966. 

'^ *' On the yerbal report of an Ordinary on the witneMes, Whether, 

*• in the controverted election in the burgh of Inverkeithing, now depend- 

* ing, one that vras a party could be adduced as a witness by the other 

* party ; it was observed that the question had, in election matters, been 
' determined in the afiinnatiye as often as it had occurred ; and, accord- 

* ii^ly, the objection was repeUed ;' Kilk. p. 599. 

* Wight, p. SS3. On this principle, in a Fortrose election, a party con- 
descended upon as gtdlty of bribery, was found entitled to decline being 
examined as a witness. This case is noticed in the report of the case of 
Stewart Nicolson, 6th December 1770 ; Fac. Coll. The foUowing opinions, 

Bb2 



S88 OF COMPLAINI'. 



^ r t M I 



it was feund that each defender might be ad^ 
daoed as a witness against the other defenders, but ooul^ not 
be examined on bis own entering into the combination, with^ 
out referring sinqdiciier to oath ^ But it is only the witness 
himself who can otgect to such an examination ; and it will 
not be competent to the other defenders to object to the ta- 
king of such evidence*. 

ddivered in this FortitMe«Me, are from Lord Hailes' Notes. There were 
■erenl .witnesses propoeed to be examined*; and it will be observed that 
a ifift**ir^M«» was dnwn between questions inferring turpitude againat the 
wit ncs a ca , and those criminating others. It was found, however, that the 
party condescended on as guilty of the bribery, could not be examined at 
alL Such a one, Indeed, could not be examined even as to otben, without 
criminating himsel£ Sir Alexander Grant o. Colonel Hector Monro and 
others, 10th July 1707 : 

' Gordmitoi.— Were no man obliged to tell iqmn his neighbour, acandi- 
« date might openly bribe the whole coundl board. 

* IStfimr. — A man may be obliged to answer upon oath, although he has 
• an interest ; but it is difficult to separate between a witness and his 



*• Xlinaoiv.— J 'would not allow persons guilty of bad practices to shelter 
*' themselves under a general objection ; but the questions here are not 
^ fidrly put ; they tend to lead persons to accuse themselTes. 

' Coaiiton. — ^Here are two general questions ; 1<^ How ftr is one obliged 

* to answer questions whence his own turpitude may be inferred ? id^ 
*• Questions whence the turpitude of his own party may be infened f I 
*■ doUbt as to both ; in what relates to a man*s sel^ he is not bound to an- 
*■ KwcTj but his refusal to answer may serve as a circumstance to infer his 
*• guilt, as is the case in criminal questions. 

* Fremdmt^^lt has been determined in the case of Perth, and since that 
' time in the hite elecHons in Fife, that questions as to fecto not concern- 
^ ing the bribery of the witnesses themselves must be answered. 

* The Ixnrds found it competent to examine as to questions which may 
^ infer turpitude against others, but not as to questions which may infer tur- 
'pitude against the witnesses themselyes. Found that Colonel Monro can- 
< not be examined. Found that Henry Davidson is not to answer any quea- 

* tions as to fects that came to his knowledge, as agent, and remitted to 

* the Ordinary to adjust the questions to be put to the witnesses.' 

1 Perth Election, 11th February 1741, Elch. Buig. Roy. No. 1&, Notes, 

vol. li p. 74. 

» Cowan V. Cowan and others, 10th July 1813 ; Fac. See also Nicol- 
•on, 6th December 1770 ; Fac 



WHO MAY BE WITNESSES. 889 

Neilher complainen nor defenders can cite any of their own 
partj as witnesses; nor can the near rdations of any individiial 
com jrfainer or defender give eiddenee for the party to which 
his rebitive bdmigs. Thus in a recriminative charge of bribe- 
ly, made by the defienders in a complaint against the pur- 
suers, the Court refused to allow the daughter of one of the 
defenders to be examined in support of this charge \ 

1 Hunter e. Bobb, 1 1 th March 1786 ; SeL Deds. Lord Karnes oondudea 
tlie report of this case, bj stating, that, * in matters of this Und, the rule 

* aeeias to be, that either part j may use, as witnenes, an j of the other 

* putfj m of their rehtloos; but that it is incompetent finr either party to 
' lead, as witnesaea, any of their own party» or of thehr relations ; vesenr- 
« log only to them to cross-interrogate such witnesses, when led by the 
» other party.' 



( 890 ) 



CHAPTER in. 

' ' ftfk'ftOirAX. lf6B0MII8. 

Bbfoke 4fce'Uaeii, the<ii^|^ of eleoiliiig die lepreeMitatave 
or representatives of each bur^^ was vested directly in the 
^lag^strates and Councol, and this form sdll remuns in the 
fenra ef E^mbwa/^. The 4>thec rBpyal Bu^csb^ however, 
#ere,^at ttte*I]^iiBti, ^ dwidui , =«& 'way*fomedy. shewn, totose- 
veral ilisCiids, efttfti MbpK^^ndS^ dr Hme bli#^^; 

and every burgh of each district dects a delegate or obmillis- 
sioner ; after which the sevaral delegates of eadi distiict meet 
together, and elect the representative in Parliantent for thai 
district The manner, therefore, of electing a representative 
for E£nburgh first merits attenticm ; and afterwards, that of 
choosing a member for a distiict of buighs: under which hit- 
ter head, the election of a delegate must first be OMisidered, 
and then that of a representative by the delegates. 



SECTION 1. 

Of the Manner qf Ekctkig a Repreuniaiive Jar the City 

of Edinburgh. 

By the act 6th Anne, c. 6, certain rules were laid down as to 
the steps to be followed before and subsequent to the election. 
By the 5th section of that statute, it was provided,' that ' the 

< sheriff of the shire of Edinburgh shall, on the receipt of the 

< writ directed to him, forthwith direct his precept to the 
* Lord Provost of Edinbuigb, to cause a burgess to be elect* 

* Supra, {k 5. — ^For a list of the bui^ compodng the several disUkta, 
see App. No. XIII. 



£I«BCnON FQft EIHNBUBGH. 891 

* cd fiv IfaBt aty; moAj an raoeipt of luch praepty the city 

* of Edinburgh ^AaH eket their member^ aad ihtir 4xinunon 
'deek afaaa ;oertify fak name to the Aeriff of Edinfaorgfa, 
^ nho AnH^i— Mac it to fab writ» ud return it with ithe same 

* into Ae Court ftom whenee the writ liBued/ 

It will be obeervedy that this clause does not ^specify in 
vhnl* manpnr the Lord Pravost shall came the eleotion to 
tdasplaoe, aov imhui what time he shall take. stsps for that 
paipaae. la.praotioe^fbewever, within two days afbr receipt 
•f the ehsriff's piCQept, he issues a praeqpt, in his own aam^ 
Sm smBBnoning .the Tonn Council^ and an cxeautioii of this 
ekaiioB is duly returned by the proper officer. 

At the-decten meeting, one<of the town dedsM is<:iiosen 
dbckcf the.meeting; and^ in^pudelioe^ the.Lord Provost ad- 
auBsfteiB-to him the oath prescribed finr nstuming.offioeiB by 
the act 2d Geo. II. c 24, sect. 8 '. 

The. Sd Geo. II. c 04,idatiqg to bsibery, is read. Aifter 
which . the Jtfagistnrtes and Counctltake the oaths totgnrem- 
ment 

The Lord Provost then produces the sheriff's precept, the 
precept mimmgning the council, and the execution of cita- 
Ikm. 

The oath of bribery prescribed by the Mlh section q£ 16th 
fieo. II. c 11, must be taken by ev^ry elector, if required 
by any other elector*. 

* For the farm of this oath, see the act in Appendix. It may he ohaeired, 
lioweTer, Uiat, by the act 18th Geo. II. c 11, sect 38, the taldng of this 
ealli is datfeaaed. with, in 80 fiur as legBrds letundiq^ ofllean ia Sootkad; 
and if lie IS not to be considered as a returning officer, the act SdGeo. II« 
does not apply to him. 

* TfateosthlaasfiiDowsf 

' I A. B. do solemnly swear, that I have not, directly or indlreetly, by 
*' way of loan or other device whatsoever, received any som or Mims of 

* oioiiey, offiee, place, em^oyment, gnituity, or reward, or any bond, bill, 

* er note, or any promise of any sum or sums of money, office, plate, eau 

* ployment, or gratuity whatsoever, either by myself or any other, to my 



892 ELECTION FOK EDINBUBGH^ 

Tbe roll of the council is now called by the clerk, and the 
votes given for a parliamentary representative. 

The minutes are reported to the sheiiff by the derk ; and 
the return is made out in the shape of an indenture between 
the 8heri£P and the derk of the meedng, and is annexed by 
the former to his writ '. 

In the celebrated contested election for the ci^ of Edin- 
burgh in the year 1780, in which Sir Laurence Dundas and 
Mr Miller were candidates, many questions connected with 
the conduct of the decticHi, and with the previous stqps, weie 
involved. Of this contest, and of the argument before the 
committee of the House of Commons, a full account has been 
given by Mr Wight. The pcnnts which were involved in the 
merits of the election of Mr Miller, who was the candidat e 
returned by the sheriff as duly elected, were the follow- 
ing: 

1^, Whether, when the Provost delays issuing his precept 
for summoning the council, it is competent for the council 
itself to appoint a meeting for fixing the day of election ? 

2d, Whether, if this be competent, the extraordinary dea- 
cons have a right to vote in iqppcnnting that meeting ? 

Sdy Whether, at the election»nfeeting, the eztraordinaiy 
deacons have a right to vote ? 

4lA, Whether, upon the supposilion that they have that 
right, there must still be a quorum of the ordinaiy council 
present? 

Bih, Whether the election can proceed upon production of 
a copy, certiiSed by the sheriff, of the precept addressed to the 
Lord Provost, but without production of the original ? 

* use, or benefit, or advantage, or to the use, benefit, or advantage of the 
^ city or borou^ of which I am magintrmte, counsellor, or burgess, in or* 

* der to give my vote at this election. So help me God.* 

^ For a fiiUer account of the proceedings of the Edinbuigh dection- 
meeUng, and the forms of some of the writs, see Bridges* Political State 
of Scotland in ISll, p» xcix. €i ««y. 



ELECTION OF A DELEGATE. S9S 

The counsel for Mr MiUer, before the comnuttee, nudii- 
the affirmative of these questions ; except as to the 
fourth, the negative of which was msisted for. The commit- 
tee resolved, that Mr Miller^s election was void ; l)ut it does 
not appear en irfiat particular grounds thrir decision rested ; 
except that it is certain, that it did not proceed on the third 
quesuoD, because the committee resolved, conformably to the 
argument for Mr Miller, that the extraordinary deacons have 
a ngfat to Tote in the election of a representative for Edin- 
burgh K The otiier candidate. Sir Laurence Dundas, was 
4leclared duly elected ; and the only point which appears to 
have been necessarily implied in this latter decision is, that it 
was not held essential to the validity of the election, that the 
Pfovost should issue his precept for summoning the Council 
witUn two days. / 



SXCTION 2. 

Of the numner of Electing the Representative ^r a District 

of Boroughs, 

1. (yfihe Election of the Delegate or Commissioner, 

Thb sheriff, upon receipt of the writ, must indorse upon 
the back the day he rec^ved it'; and forthwith, at least with- 
in four days, make out, and cause to be delivered to the re- 
ading chief Magistrate of each burgh within his jurisdiction, 
a precept, to elect a commissioner or delegate, for choosing a 

* This resolution, Mr Wight nys, was communicated to the agents for 
the parties, hut was not reported to the House. 

* The form of indorsation is this:— « At (pho€ and dai§.J This writ 

* was recrived hy me A. B. Sheriff^depute (armib§iiM$J of Uie shire of 

* ', this day, between the hours of and «- 
« (Signed) A. B.* 



S94 ELECTION OF A DELEGATE. 

bmseas to werve in ParinBent ^; ftDd, upoa faikiK in any of 
these pottculara, he, fiir every afieaoe, fiNrfints L»100 ater- 
lii^, to any mag^atinte-oF the burgh to which.tfae precept has 
not been umeootly .deiiwssed^ who shaEsue for .the aaaae. 
The act 61I1 Anne, c* (6,.:aeet. ft, reqipres dial thefiVQcepCs 
«haU oommaad the chief . magisttatca <d order theicomBBa. 
tioners to vnet at the^pcending bivgh ma thetflOth day after 
the teste of the writ, or, if that be a Sunday,. oOtthe^fiiUow* 
ing chry, for the parpose of dioooi^ a bui^aB. 

The chief magiatvate, upon recopt of >the precept, inuat 
in hke manner indorse upon tlie back of it the day^fae ve- 
myed it, and must witUn two days aumaMn die ooinMtl, by 
giving personal noMe, or notice at the dwelling place of efoy 
resident councillor *. The chief- miigi8trate,ion 'fidlare in any 
of these particulars, incurs a penalty of L.1M> Uteiling^. 
Although the magistrate must summon the council within 
two days after receiving the precept, it is not neoessaq^ that 
the meedng for fixing a day for loosing a commisnoner shall 
be held within the two days \ Two firee days must ehpae 
between this aKeting «id..that for dioosii^ the raasmin 
sioner^ 

In a case fiom the Wigton district of buif;h8, where one 
of the ddisgates had reigned on vtbe very day /or electing the 
member, and the council of the burgh which that ddegate 
repreanited had ibrtfawidi elected: a new delegate, it was ar- 
gued Aat the Mieriff^ precept had been exhausled by the 
Section of the Bm del^ate,imdduit the ^statutory lequiateBS 
bad not been comi^lied with. The eomnnttee of the Mouse 

> leth Gea IL c. 11, sect 40. For the fbrm of the Precept, see App. 
K0.U. 

* lb. sect 41. *lh..ncU4i. 

« Aitlte&«.Ghalmera,19th;JuiieJ;m;JF^o.--^AU^^ 
¥ Xmd i^uUma C/mfiOL « Theosse does not aMm labevUhSnlte 
' dause fomded on. A laaaacas almy» iiopilM Some fwAigto.' 

' leth Geo. IL c 11, sect 49. 



ELECTION OF A DELEGATE. 895 

of Commons rewlved, that the «ttididaCe who hadi the majo- 
rity of votes of the other ddegates, was daly dioctM ^« 

At the iBeeCiiig for appointhig the day of deetkn, the 
iheriff^s preeept is read, together with the chief magistmte^s 
suttHDOiiB, and the execution of that summons; aod the 
Couneil apfxjint a peremptory day for electing a commis- 
aoner, tbit ohooring a burgess to serve in Parliament*. 

At the meeting for cbooamg the commisoonar, the act 9d 
Geo. II. c. M, against bribery, is read. The magistiates 
and couneillors next qualify to government, by taking . and 
subscribing the oath of allegiance, and subscribing the insur- 
ance, and by taking and subscribing the oadi of alguration, 
if mjuired. Any of the magistrates, or, in their absence, 
an^ inro 6f the councilors, must administer to the elerk the 
oath of bribery prescribed by 16th Greo. II. c. 11, sect. d0'. 
i^evwurds every c^tor must, if required by any other elec- 
tor, take the oath required by the same act, sect. 84^ . 

After die preliminary proceedings are finished, the magis- 
trates and council give thar votes for electing the commis- 
sioner. The votes are marked by die clerk, and the result 
is declared by .the preses ; after which the cleHi is ordered to 
makeoiit B commission for the person chosen oommisffloner, 

■ 

1 Case of WigtoD } Douglas, iL p. 181 ; Wight, p. S75. 

' 16th Geo. II. c. 11, aect. 41. 

' This oath is as follows : 

^ I A. B. 4o solenmlj swear, that I have not, directly or indirectly, by 
*• way of loan or other device whatsoever, received any sum or sums of 
*' money, office, place, employment, gratuity, or reward, or any bond, bill, 
*'or note^ or any promlae bf any ttaa or sums of money, office, plaee, em- 
hptoiymmik, cm9Mtally<iiintB0Mier,.iBltte^ 

' use, or benefit, or advantage, to make out any commission for a oom- 
^ ■■i i i w ii wwr .^ i^KKHiiig a biogMs; and tliati will duly make outa com- 
*■ miasUm to the oommisaloner who shall be chosen by .the mfjoxii^ of the 
' Town Coundl assembled, sad to ttoolher.firsMb' Sihhelp me God.' 

* See this oath Mpra, p. 991, 



896 ELECTION OF MEMBER FOB A DISTBICT. 

which must be signed bj himself, and sealed wilh the com- 
mon seal of the burgh K 

If the common derk of the burgh shall fisdl in these parti- 
culars, or if he shall make out and mgn any oommisdoQ for 
any other person not chosen by the majority, or shall affix 
the common seal thereto, he incurs, fcur every such offence, 
a penalty of L. 500 to the commissioner duly elected, and 
also shall suffer imprisonment for six months, and be disabled 
to hold the office of common clerk in future. The private 
party may, without the concourse of the Lord Advocate^ in- 
sist for the fine by sunmiary complaint in the Court of Ses- 
Non, but cannot inast for the sentence of imprisonment with- 
out that concourse \ 

If any person who is not the common d^k of the buigh, 
shall act as such at an election of a commissiraier, and diall 
make out a commission to any other than the person dioseo 
by the majority, and sign the same, or affix to it the common 
seal, he incurs the like fine, of L.500 to the person duly 
elected'. 

It is not requinte that the commissioner shall be a resi- 
denier, or trafficking merchant, within the burgh, or shall be 
in the possession of burgage-lands or houses holding of the 
burgh ; and such qualifications need not be engrossed in his 



commission \ 



2. Of the Election of the Representtxtive by the DekgaUs. 

Ok the 30th day after the teste of the vnrit, or, if that be a 
Sunday, on the day following, the commissioners from the 

> ISth Geo. II. c 11, iect 96. For the form of the Commkrioih see 
Appendix, No. XV- 

* Syme «. Munty, ISth Jsnutry 1810; Fac. 

> letfa Geo. II. c. n, sect S7. 
« 16th Geo. II. c. 11> sect. 89. 



ELECTION OF MEMBER FOR. A DISTRICt. 397 

several burghs of the district assemble in the lown-*house of 
the presiding burgh. The differi^nt sheriflTs precepts are 
then produced, and the bribery act of ^ Geo. II. is read ; 
after which the commissioner from the pre^ding burgh ad- 
ministers the oaths to government to the common clerk of 
that burgh, who officiates as derk to the meeting. This 
clerk then takes the oath prescribed by the act 16th Greo. II. 
c. 11 ^, which is administered by the presiding commissioner. 
If he neglects or refuses this, he is disabled from acting as 
clerk, and the meeting must choose another '. 

The commissions of the several commissioners are now 
read ; and any objections or protests respecting them ought 
to be entered in the minutes. 

Such votes only can be allowed as are given by persons 
producing commissions regularly signed and sealed \; but if 
any person to whom no conmnission has been made out, 
shall insist that he was duly elected commissioner, he must 
be admitted to the meeting, and allowed, on taking the re- 
quisite oaths, to declare for whom he would have voted, had 
he got a commisfflon ; and the clerk must insert in the mi- 
nutes his declaration as to the person for whom he would 
have voted, but must not receive or consider his vote as le- 
gal ^ The office of the clerk is merely ministerial, and he 
must consider as legal the votes of all those producing com- 

* ^ Sect 35. The fonii of the oath ib as follows .* 

^ I A. B. do solemnly swear, that I have not, directly or indirectly, by 
( way of loan or other device whatsoever, received any sum or sums of 

* money, olBce, place, employment, gratuity, or reward, or any bond, bHI, 
' or note, or any piomiae of any sum or sums of money, ofiOoe, place, em- 
' plojment, or gratuity whatsoever, either by myself or any other to my 
*' use, or benefit, or advantage, to make any return at this election of a 
^ member to serve in Parliament ; and that I will return to the sheriff or 
*" steward the person elected by the miyor part of the commissioners as- 
' sembled, whose commissions are authenticated by the subscription of the 
*' common clerk and common seal of the respective boroughs of this dis- 

* trict So help me God.* 

* lb. sect 3fi. s Sect 30. * Sect 3S. 



S98 ELECTION OF MEMBER FOR A DISTRICT. 



duly sigaed and sealed, without any power of de- 
tennining that any other person had a better title to have ob- 
tained a commisfldon. 

The comimm.oDers now take the oaths to government, and 
likewise the oath of bribery, introduced by 2d Greo. II. cSMt, 
if required by either of the candidates, or any two of the 
electors ^. The eommisdoners then give their votes ; the is- 
sue is deelared ; and the minutes ai^ signed by the preses 
and derk. 

In case of equality of votes, it was provided by the act 
1707, c 8, that the presiding comndssioiier should have a 
casting vote, besides his own as oommissioaer; and that the 
commissioners from the di£Perent burghs should preside in 
turns, in the order in which their boroughs were called in the 
roll of the Scottish Parliament. It was afterwards piovided by 
the act 16th Geo. II. c. 11. sect S8, that if the commisrionqr 
frcHSi the presiding borough should be absent, or refuse to vote, 
the commissioneiB frcxn the borough which presided at the 
last election, diould have the lasting vote, and so backwards 
in rott^on, till one preset and wiUing to vote should be 
found. It was farther provided by the act ^ Aime^ c 6. 
sect. 5. that, in supplying a vacancy occurring during the sit- 
ting of Parliament, the borough which presided at the elec- 
tion of the former member, shall preside at the new election. 

A question having afterwards occurred in practice, as to 
the efiect of the voiding of an election of magistrates of a 
borough^ on the rotation of borou^, and having beoi the 
subject of a decision by a committee of the House of Com- 
mons, it was enacted by the irtatute 14tb Gea III. c 81. 
sect. 2, conformably to that decision, that, at every election 
of a representative, when the election of magistrates of a 
borough, whose turn it was to preside at such election has 
been set aside, and not revived, the bcxough next in order 

1 For the ibrm of this oath, see wprm^ p. SSa 



ELECTION OF MEMBBR FOR A DISTRICT. 399 

shall be the preceding borough ; and the other shall not again 
preside till its turn comes next round. ' 

The obligations on the derir, and subsequently on the she- 
riff, as to returning the person who has been elected mem- 
bers, aie similar to tho6e<^ these officers with respect to county 
diections, and are guardied by the like penalties '. The re- 
turn is in the form of an indenture between the sheriff and 
the derk of the dection meeting K 

1 16th Geo. II. c 11. sect. 30, 31 ; 26th Geo. III. c. 84. See mpra^ as 
to countleB, p. 28t. ei teq, 
^ See form in Appendix, Not XTI. 



< 400 ) 




CHAPTER IV. 



OP THB QUALIFICATIOHS NECS8SAKY IN THE EKPRSSKVTA' 

TIVES OF BOEOUGHS. 

Feom some of the earliest authentic evidence which we 
have connected with the representation of the boroughs, it 
would appear that they were frequently represented in Par- 
liament by their aldermoi or provosts ^. We know, that, at 
an early period, it was common to dect persons not merchants 
or indwdlers in the town, as magistrates of the different 
boroughs,*— 41 practice which gave rise to various acts of the 
legislature, to counteract it; and hence those chief ma- 
gistrates who sat in Parliament for the different boroughs 
may not always have been actually resident and trafficking 
burgesses. Sometimes, in these early periods, the representa- 
tives are designed simply burgesses of the different towns ' ; 
but, in gener3], they have no designation at all in the rolls of 
Parliament. 

By the act 1587, c. 88, it was provided. That < there shall 
* be na confusion of persones of the three estaites : That is 
^ to say, na person sail take upon him the function, office, or 
' place, of all the three estaites, or of twa of them ; hot sail 
' only occupy the place of that selfe estait, quhairin he com« 

1 Id the Parliament which assembled at Edinbuigfa, in the jear 1357, 
to arrange with respect to the ransom of David 11^ the persons who ap. 
peared for the boroughs are designed, ' Aldermanni, Mercatarea» el Bur- 
*• geusea.* Rymer^s Foedera, vol. vL p. 44. From the Records of Parlla- 
ment, also, which have been published bj Mr Thomson, we find the * al- 
^ derman* or ' provost' frequently representing the different towns. See, 
for Instance, vol. ii. p. 99, for the jrear 1468, and voi ii. p. 330, for the 
jear 15t)8. 

' See Mr Thomson's Acts, vol ii. p. 93, for the year 1469. 



WHO MAY REPRESENT BOROUGHS* 401 

^ manly profeesis himselfe to live^ and quhairof he takis his 
< stile; 

Sir George Mackenzie ' explains the former part of this 
clause to mean, that the clergy were not to vote hoth as 
churchmen and as la3rmen in respect of their lands ; and with 
respect to the latter portion of it, directing that each should 
occupy the place of that estate in which he usually lives, he 
inclines to think that it was dedgned to keep the barons from 
being chosen as representatives of boroughs, although they 
might be provosts or magistrates. 

About the same period idso, it would appear that the Con- 
vention of Boroughs had made various acts, requiring that 
the borough representatives should be actual traflScking mer- 
chants*. These different provisions had, however, been ne-^ 
glected ; for, near a century afterwards, in the year 1674s a 
letter was addressed by Charles II. to the royal bcM-oughs, re- 
quiring them to correct their practice on this subject, and, in 
the following year, the (Convention following up the kingV 
object, again made an enactment to enforce the necessity that 
the representatives of the boroughs should be actual residen- 
ters and tiafficking merchants ^ 

Subsequently, in the year 1681, a judgment of the Court 
€>£ Sessioo was pronounced, enforcing the penalty imposed by 
this act of convention for contravening its terms ^ ; and, in 
the same year, resolutions were passed in Parliament, ap- 
plying the rule as to the necessity of residency and actual 
merchandise, to several particular cases of election ^. 

Still, however, it would appear that these regulations were 
evaded ; for, we are informed by Spottiswoode, that, both be- 

' Obsenrations, p. 23S. 

' See the acta namted in the Act of Convention, Wight's Appendix, 
K0.4& 
' IVIgfat'a Appendix, No. 4A. 

• C^ae of SeUdzk, Slat July 16S1. FouBtainhalK 

* Mr Thomaon*! Acta, vol. viii. p. 237. 

c c 



409 WHO MilY R£PBS«BNT BOBOUGH^. 

tare and after tlie Unions lawyers and leaiMd ge^laneii weve 
chosen to represent boroughs in Parliament \ That author, 
Iio#eter, farther obtierrBs, dial the^ ndes w^e so tut obser- 
ved in his time, that the member choten wte a burgess of one 
of th^ burghs of the district whidi be represented, althou^ 
Fotb^ rimply states ^ thAt the ruks were not observed when 
hcTwroCe. 

Ilk the Wigtbn case, in the* year 1775, the dommittee of 
the Hottse of Commons itesolved^ that a gentleman had been 
dulj elected, although it was adodtted that he was liot, al 
the time of the deotion, a burgess of anj oi the tcmt bcm^lighs 
of which the district consisted, and although it was strai^y 
aigued that that ciroumstance constituted a disqualificaladn '. 
At present, it is quite understood that any panoa, although 
not a buigess or reaidenter, may be chosen to repreaeat a 
bcMough, provided he is not personally £dquaMed ia any of 
the modes which have been already mentioned in relation to 
Uie qualification lor representing a odianty. The writ and 
return, however, stOl retain the form of dienominating the 
person elected a burgess* 

^ Election Law, p. 45, first edition published in 17 10. 
* Letter on ttleetions, p. 38. published also in 17iO- 
' Douglti, ToL it p. 181. 



« AN 



HISTORICAL INQUIRY 

CONCERNIxVG THE MUNICIPAL CONSTITUTION OF 

TOWNS AND BOROUGHS. 



Bt the law ot Sootland) the election of the representatives 
of the Royal Burghs in Parliament is vested in the Magis^ 
tmtet and Town Council of the respective bucgbs, either 
directly or through the intervention of del^^tes chosen by 
these bodies. Hence the primary objects of inquiry with re- 
splct to the choice of those representatives, are the nature of 
th^ municipal etobli^ments of the towns of Scotland, and 
the rules according to which the various members of the civic 
government are elected. 

When the singuhir resemUaace which may be discovered 
between thte municipal establishmenis of different countries is 
considered, we can hardly avoid concluding that they have, 
to a gnater or less extent, beeA copied frotti one another, and 
thit they will, in a certain degree, mutually illustrate one an- 
other. In the towns oi many countries are to be found, at 
diftrent periods, a general corporation' or community ; sub- 
oMBnate corporate bodies, such as gilds and crafts ; various 
ranks of ma^strates, and a common council ;— coincidences 
whieb can hardly be supposed to be accidentaL A remark- 
able similarity may also be observed between an institution, 
wdl known in many English burghs at this day under the 
name of the Court Leet, and the ancient system of Scottish 
burgh government by Head Courts. It is therefore pro- 
posed, to giire a short view of the history of municipal esta- 
blishments in one or two of the principal countries of modem 

cc« 



404 AN HISTORICAL INQUIRY CONCERNING 

Europe, in the hope that this^ iDqui|y may perhaps illustrate 
the history of the internal constitution of the burghs of Scot- 
land. 



CHAPTER I. 

RISE AKD PROGRESS OF THE GOVERNMENT OF TOWNS IN 

ITALY AND FRANCE. 

It is well known, that, in the twelfth century, the Sove- 
reigns of France adopted the method of granting charters of 
certain privileges, called Charters of cotninim^, to vmras 
towns throughout their dominions. These charters appear 
to have been sometimes regarded as the origin of the right of 
these towns to elect thar own magistrates, and of the other 
privileges which they conferred ^ On the other hand, it has 
been maintained, that many cities of France enjoyed the right 
of electing their ma^trates, and other privileges, from a pe> 
riod long prior to these grants of communes ' ; and this opi- 
nion has been carried so far as to hold, that a system of mu- 
nicipal government, rimilar to that which was established in 
the Gallic cities when under the Roman sway, had contimied 
down with little variation to the time when this and other 
privileges were confirmed by the chartws of the Frendi 
monarchs. If this view could be held as established on finn 
grounds, it would lead to the interesting condusioo, that the 
form of municipal government at present existing in many of 
the cities of modem Europe, which is in some respecta simi- 
lar to that which we find in the French towns posterior to the 

^ Robertson's Charles V. i. p. 39. The learned and eloquent historian 
admits some exceptions to this rule ; but states that they are so few, as 
not to diminish the fipeneral conclusion.— Note Y6, inflnt. 

* See the Abb& Dubos, Hlstoire Critique de la IConaschie Fransroifle, 
.aa afterwards quoted. 



THK CONSTITUTION OF TOWNS. 405 

gnmCs of communes, might be traced, in a greater or less de- 
gree, to that system of internal constitution which was esta- 
Uiflhed in the towns of the Roman provinces, and which we 
know was to a certain extent modelled on that of Borne itself. 
In Scotland, a direct parallel has sometimes been drawn be- 
tween the internal government of our burghs and the Roman 
cDDstitution. Our Town Coundl has been said to correspond 
to the Senate, and our Magistrates to the Consuls and Pr8^> 
tors'. It is certainly by no means intended to adopt any 
such tbeoty as fully established, or to maintain that there is 
conclusive evidence that this internal form, of government ex- 
isted in the* French towns from so andent a period as has 
been maintained ; but still it may not be uninteresting to 
brii^ together such facts as tend to illustrate the subject, and 
6udi opinions and arguments as have been maintained in sup- 
port of this view. 

That the establishments of the Romans should be mdually 
extended to the towns throughout the territories to which the 
powar of their arms had reached, is conformable both to what 
we might expect from the influence of a victorious nation, 
and to what we learn from their authors. When their con- 
quests were first extended throughout Italy, it appears to 
have been their general policy, after taking possession of a 
dty, to restore it to its freedom, and to take it into a state of 
alliance. Before the Social War, the greater number of the 
Italian dties seem to have been in this situation, but without 
possessing any of the rights of Roman citizens'; and were 
distinguished by the name of * Foederatse civitates.' It ap- 
pears that a form of government pervaded these cities, mo- 
delled in a great degree on the Roman. Capua is described 
by Livy, at the time when Hannibal marched thither with his 

' See Karnes* Remarkable Decisions, p. 182. The passage alluded to 
has been inserted by Lord Kames in the report referred to, from a paper 
in tlie case drawn by himself. 

* Sigoni)i8 de Antiq. Jure ItaL lib. IL c. 14. 



406 AN HISTORICAL INQUIKY COKCEIIXIXG 

aimy, as haviog a senate and magistFacy ' ; and many of the 
other cities' of Italy were in a similar ntuation^ On the 
oQQcIuflon of the Social War, the inhabitants of the principal 
dtaes of Ilaly, without removing firom thw own towns, were 
admitted to dthar a total or partial partictpation in (he rights 
of Bonan citiaens, but, at the same time, were allowed to 
retain their own laws and establidiments ; in which condition 
they wese eaUed ^ Munidpia.^ The internal government pos- 
^eaaed fay these cities is wdl known to have home a close re- 
semUanoe to the Bonan, and to hare been nearly the same 
with that whidh the Bouiaas estaUished in the coIooicb which 
they sent from Bome itself. Both the municipia and the 
colcynal cities had a senate, the members of which weve eaUed 
Dicurkmes^ and a magistracy, who were sometimes called 
Dummviri\ oormsponding nearly to the Boman consuls; 
sometimes Triumviri and Quaiuorviri, and at other times ap- 
pear alao to have oomprehoided censors and sBdiles^: These 
magistrates appear to have been elected by the cititens?; 

^ liv. lib. xxiiL c 2. 

' It may be meationed, that the word civUasy which we tranalate tome- 
time* by the word cUy^ and sometimes by that of Haie^ was generally ap- 
plledl to a state more or less extended, which consisted of a principal iottm^ 
ifritb adc^wndeat tenttary ; or, in the words of the Abb< Dabcis <Hlrt. 
CriU de Ja Monarch. Fran^. iii. p. 6QB)^ * ua certain <fiirtxlct goavcin^ par 

* une ville capitale.' Such were the colonies, the muniolfia^ and Ui« cm- 
UUesy into which the provinces came ultimately to be subdivided. Th^ 
magistrates of these cities were at once the political governors of the 
stale, cfmaidered as consisting of a district, and the dvic nders of the 
tovn. 

' Sigunius, lib. ii« c. 14. 

* * Qui fuit senatus Rome, idem in municipiis decurionum concilium/ 
— Sigonius, Hb. ii. c. 8. 
ft « ]>uumviratus magistratus erat prope consulatui aut pneturK com* 

* par.*i— Sigonius, lib. iL c 4. 

« Sigomus, lib. ii. c 4. &. 8. Md. c 8. in fine. 



THE CONSTITUTION OF TOWNS. 407 

akbough in later tivMS perhaps by the 4eourioii6 ^ and, at 
ooe. time at least, from among the decurions '. 

There appears to be sufficie^ evidepice that the institutioBft, 
both of decurioDs and duumvirB^ but particularly that of the fer- 
mer, continued to exist k»g after the pmod of the Sepubiie, 
and prevailed to a greater or less extent throughout various 
provinces, bodi of the Western and Eastern Empires, during 
a large portion of the 4irst ten oenturies of the Christian 
era. The Thoodosian code, published a litde before the 
middle of the fifth c«itury, contams a particular aooount 
of the office of decurions. A low of Majorian, Emperor 
of the West, who lived in the middle of the fifth oen- 
tory, mentions as existing in the cities, what is there 
called the Leuer Senate^ composed of the curial orders'. 
The Justinian code,' pubUshed towards the middle of the 
sixth century, contains a title in which the offices of deco- 
rions and of duumvirs are treated of at conaderdble length "* ; 
and It i^pears, both from this source and from the law of 
Majorian, that the decurions had been so harassed by some 
of die higher officers and judges of the emperors, that the 
office had come to be rather avoided when posnble. From 
this circumstance, it will be observed, that the office is treated 
of^ not merely as part of the old system of government, but 
as an existing institution. The decurions can be recognised 
in the codes and laws published from time to time by the 
Emp^xNTs of the East, down to so late a period as the time 
of Leo the Philosopher, who reigned in the close of the 

' See Constitutions of Leo, 46 and 47, afterwards mentioned, p. 408. 

' Joayonius, as quoted bj Sigonius, lib. U. c 4. 

' Lmts of Migorian, as oted by l'Abb4 Dubos, Hist Crit. voL i. p. Sfr 
See this Immlttf^ p. 409. Of the Curin, Ducange, eo voee^ gives this account : 
*" InstitutsB ponno curie Aierunt in munidpiis exemplo senatus Rmnanse, 
' jusm rm fimnMvwmi TfXttti fUftn^f, ut est in his Justiniani novella S8, 
^ unde et Senatus nomen iis indltum.* 

« Lib. X. t. S8. 



408 AN HISTOAICAL INQUIRY CONCERNING 



ointh and b^nniDg of the tenth century, and who published 
several laws abolishing the authority of the decurions, or at 
least their power of appointing certidn magistrates, on the 
ground that such a system was now useless, as all authority 
was centered in the emperor ^. The jHcture given of this of- 
iioe in these laws, is that of a system of internal government 
established in the cities'; and although these laws may be 
considered as more immediately descriptive of the state of the 
territoricfi at that time under the Eastern Emperor, they may 
be received as illustrative of the nature of those establish- 
ments, which, as is shewn by the evidence already referred 
to, extended, at one time at le^st, equally to the Western 
Empire. If we should suppose, that, at this late period, there 
was any remnant of this institution in the cities of the West- 
em Empire, we cannot suppose that the law of a Constantim^- 
politan sovereign, whose authority had so long before ceased in 
the Western World, should have the effect cf abolishing them. 
There is also mention made, in the Theodosian and Justi- 
nian codes, of an executive and judicial officer in cities, pos- 
sessing conaderable power, and distinguished by the name of 
Defensor dviUUU. This officer, althdugh at first he appears 
lo have had a duty of rather an indefinite description, namely, 
that oi protecting the city and its other rulers,' seems after- 
^vards to have been vested with more cerUun powers. He 
was authorised to judge in civil causes to the value of SOO au- 
rei ^, and in the lighter criminal matters^. The higher criminals 
he was ordered to incarcerate, and send to the governor of 

> -Conatitutiones Leoais, 46 et 47. 

' * Curiiii autem privll^um ut quoadsm insgiBtnUis ooniCitiiereiit, 
'.suaque aut(»it«te dvitates gubernarent $' Conatit. 4& ^ In alib etiam 
^ civitatibus a dectuionibus, ut yocabaatur, pt^teU^ quidam non tamen 
^ qualee hodie militares pnefectura novit, aed exceUentkvea .quidaiii, qui- 
^ que aliam curam demandatam haberent, pneficieba&tur.* Constat. 47* 
These pnefecti were probably the duumviri, or some similar oiBoefs. 

' See the Theodosian code, lib. i. tit 11. 

* Novellie Just. coll. iiL tit. ii. c. iii. * lb. c. vi. 



THE CONSTITUTION OF TOWNS* 409 

the province ^ This functionary ivas elected by the citizens 
generally % or at least by the more respectable part of 
them^ 

Although there is every reason to believe, that, bendes the 
controul of the higher governors and judges appointed by the 
emperors, a system of internal government, by municipal offi- 
cers, was, generally speaking, established throughout the pro- 
vinces of the Roman empire, both during its vigour and its 
decline, yet we are of course not to suppose that the civic 
rulers were uncontrolled by those higher governors and judges. 
That they were not uncontrolled by them, is abundantly 
proved by the law of Majorian above cited \ and by the 
constitutions of Justinian relating to the defensors ^ 

There is reason to believe, that the municipal institu- 
tions formed on the model of Rome, were, during the 
middle ages, subverted to a greater extent in Italy, than in 
the more distant province of Gaul. This might proceed 
from the ravages of the successive torrents of barbarians who 
desolated the former country, and at different times formed 
kingdoms within its bounds. In Gaul, on the other hand, 
we know that it was the policy of the Franks, when they de- 
stroyed the Roman sway, to leave the people in possession of 
the Roman laws and customs ^. We shall immediately see 
that there is some reason to believe that many cities of France 

^ lb. c. vi — ^According to Loyaeau, I>e8 Seignories, p. 149, he had the 
power of electing the decurions; but this writer does not mention the au- 
thority on which he founds this opinion. 

* Gloss, in 1. hi potissimum Cod. Theod. lib. i. t 11. 

' *• Bonse opinioni studentlbus.' NoveL Just. colL iii t 2. epiL 

* ' Curiales servos esse rdpublicae ac viscera civitatum nemo ignorat, 

* quorum c«tum appellatum Minorem Senatum hue red^t, iniquitas ju- 

* dicum et exactorum plectenda venalitas, ut multi Patrise desertores, et 
^ natalitiiun splendore neglecto, occultas latebraselegerint et habitationem 
'juris alieni.'->£e# Majmani annt 458 ; Abb^ Dubos, torn. i. p. 28, 

^ NoveL Just colL iii t. 2. c. 1. 

* Abb^ Dubos Hist. Crit. iiL p. 432. 



414) AN HlfiVOBICAL INaUiRV CONCERNING 

■ 

never had been defNrtred of their fMrtioular righte; and thai 
there is eMenofif that, when the practice of granthig eon- 
munes was introduced by the French sovereigns, privilqes 
already esditiag were aometioes confirmed. 

But, in lik^ manner as, under the Roman emperors, the 
munieipd governors were controlled by the imperial ofioera, 
so, under the kingdoms which arose in France and in Italy 
on the ruins of the empire, the civic rulers, where these re- 
mained, were under the authority of officers appointed by 
the sovereigns ^ It was the practice of all these monarcfas, 
Yfoih in France^ and in Itidy^, to send into the particular 
einef cities, governors called Comiies 1 

The title of Comes was also well known under the Roman 
eoafMre, as applied to the governor of a province^, and with 
various other aignificattons. It was very early adopted by 
the nations which succeeded to the Roman sway. Selden has 
given us an ancient form of a commission to the count of a 
city under the Gothic kings oi Italy, in the end of the fifth 
century. It is taken by him from Cassiodorus, chancellor of 
Theodoric the Great ; during whose reign, according to Sel- 
den ^y the Roman fi»rms of government were imitated. This 
commission, after ^ prolix egiordium in the inflated style of 
that age, proceeds thus: ^ Propterea per illam indictionem, in 
' ilia civitate Comitivae Honorem Secuodi Ocdinis tibi propitia 

* divinitate largimur, ut et cives commissos sequitate rcgas, 

* et publicanim ordinationum jussiones oonstanter adimpleas: 

* quatenus tibi meliora prsestemus, quando te probabiliter 

* e^sse pnesenua, aentiemus V 

These counts, at a later period at least, exercised jurisdic 
tion with the assistance of assessors, usually known by the 

' Id. torn. iii. p. 497 et teq. lir. vL ch. 11. 

* Id. torn. i. p. 41 ; torn. Ui. p. 42>7- 

' Muratori Antiq. voL iv. p. 4. Disser. 45. 
^ See also Spelnuui, p. 140. 

* Code, lib. 12. tit. IS. • p. 302, 2d edit. ' P. 317, 2d edit. 



TJtE CONSTITUTION OF TOWNB. 411 

Dame of Scabtnij'-^ title by some suppoped io lie M>e origin 
of the French echevin, or alderman, and wliich k is at 
tfl Bveais certain was afterwards applied to a mmicipal 
ofice \ These assessors were chosen in France by the (xwot, 
with the oonsent of the people f. Mtaratori is of opinion, 
that, in Italy, the assessors of the eounts were named by 
the Lombard kings ; and that the so^bini, diete chosen by 
the people, weie a different dass of judges^. But wliat- 
ever wei^t may be due to that Ojpinion, it does not seem ap- 
plicable to France; and it is at all events certain, that Lo* 
thariiis I,y one of the descendants of Charlemagne, to whom 
Italy, and some of the western provinces of France, fdl as his 
share of the Carlovingian empire, published a law directing 
his mwi to elect scabini, or judges, with the consetit of all 
the people \ 

The establishment of these counts or governors of cities 
probably hod a great effect in putting an end in many places 
to the ancient municipal establishments ; for we may suppose 
that they would view with jealousy the authority of any in- 
feiior magistrates. 

In France, the counts, and other rulers of provinces, not 
only deprived the sovereign of a large portion of his preroga- 
tive, by throwing off his authority, and changing their tem- 
porary commands into independent and hereditary principali- 
ties, but wrested also fron^ the people their former rights and 

* Thus^ we find tjbie Major et ScatM of p\joii and of l^es\m% M/|ddDX 
firma Bur^ p. 183. 

* Cum comity et pppulo cligantur et constitusptur. Papityjl fD^r. 
^Maf. c. 22, ann. 809, ap dted in Hi3t. Ville de Paru^ par FeUbiei^ Di3- 
9stU sur Hot. 4e vilk, p. 78. Totius popuU coosen«u eligantMr scatumi- 
Capit. Lud. Pu. c 2, ann. 829, cited a$ above. 

' Antiq. voL i. p. 495 et teq, Disser. 10. 

« Muratori, Ji«ira, p. ;^00. See al^Q; Spelman, voce Sc^^juM, wi¥> says 
thejr were chosen in this way* 



41 S AN HISTORICAL INQUIRY CONCERNING 

privileges, including, in many places, their andent municipal 
establishments ^ 

Even in Italy, the mumoipal establishments were never 
perhaps entirely subverted*. In proctf of this supponlicm, 
reference may be made to the treaty which was concluded in 
the year 1180 between Frederic Bariiarossa and the Italian 
cities, in which the emperor confirms to these towns a variety 
ci privileges connected with internal government, whidi, the 
document bears, had been possessed by them from a remote 
period'. Still, however, some time before this treaty was 
concluded, the cities of that country were in a state of ex- 
treme subjection to the German emperors and the native 
nobles; and to such an extent had the oppression of these 
masters proceeded, that, about that period, there was a general 
struggle on the part of those cities, for the purpose cf obtain- 
ing independent establidiments. So successful 'were these 
endeavours, that, we are told by Otho, bishop of Friangen\ 
in the reign of Frederic Baibarossa, that the dties of Italy 
so much affected liberty, that they were now more under 
consuls than the emperors, and that they imitated the Ro- 
man municipal institutions^ ; to which cause, the application of 

^ AbM Dubofl Hist Crit. torn. iU. p. 502, liv. vi ch. 11. 

' Accordiiig to Mr Gibbon, ^ In the Italian dtiea a municipal gorem- 

* ment had never been totally aboliahed ;* c. 49, voL ix. p. 20& 

' ' Videlicet, ut in ipsa civitate omnia habeatis sicut hactenus habuia- 
*• Us, yel habetis. Extra vero omnes conmietudines sine contradictione 
' nosttm exerceatis, quas ab antiquo exeicuistis vel ezercetis, tam in finro, 

< vel in nemoribuB, et pascuis, et pontibus, aqids et molendinis, acut ab 

< antiquo habere consuevistia, vel habetis, in exerdtu, in munitianibus 

* cititatum, in jurisdictione, tam in causis criminalibus, quam in cauais 
« pecumariis, intus et extra, et in caeteris, quae ad commoditatem spectant 

* civitatum.*.— Lib. de Pace Constantifle, in the Corpus Juris. 

* Scrip. ItaL torn, vi p 707* 

^ ' Veruntamen barlwricK (such is the expression of the bishop) depo- 
' sito feritatis rancore, &c. Latini sermonis eleganiiam suorumque reti- 
' nent urbanitatem. In civitatis quoque dispositione ac reipublicK cim- 



THE CONSTITUTION OF TOWNS. 418 

the title of consul to their chief magistiates has been attri- 
buted K These consuls appear to have had great authority 
amongst them ; and their influence was pkd, by one of the 
states, as an excuse to Frederic for its rebellion^ after the 
zealous endeavours of these cities had called down upcm them 
the vengeance of that monarch. When the war which he 
waged against them had ravaged tor a time the plains of 
Lombardy, the treaty already mentioned was conduded at 
Constance, by which, although many of the privileges of in.* 
temal government were ratified, yet the emperor reserved 
to his own nuntios the right of nominating the consuls of the 
different states ^ But this mark of dependence was not of 
long continuance, for new exertions were afterwards made, 
and, before the dose of the thirteenth century, the greater 
part of the dties of Italy had become independent republics^ 
As one instance of the constitutioti then established in an 
Italian dty, we may mention that of Sienna, in which, in the 
year 1288, a diief magistrate or potesias was appointed to be 
chosen, not by the people generally, but by various heads of 
different bodies, and to act by the advice of five judges ; and 
several ooundls were instituted, one called the Conrilium ge- 

^ seryaUone antiquorum adhuc Romanorum imitantur solertiam. Denique, 
*■ libertatem tantopere affectant, ut potestatLi insolentiam fugiendu, con- 

* sulum potius qiiam imperantium reguntur arbitria* — VoL yi. p. 708. 

* Ex piindpum ac de univenria pene civitstibua coasulum seu nugomni 
' cooYenfeib* — ^p. 110» 

' *• Itaque pximo Romanae reipublice adinatar consules adlecti fiierunt 
^ qui davum imperii tenuerent' — Mar. Antiq. Diss. 40. initio. The 
mode of election of these consuls is thus described by Otho» p. 708. 

* Cumque ties inter eos ordines, id est, capitaneorum, valvassorum et 

* plefais cMe noscantur, ad xeprimendam superbiam, non de uno sed de 
*ahignlm» pnedicti consules eliguntur, neve ad dominandi libidinem 

* prorumpant, singulis pene annis variantur.* Otho, p. 708* 

* *• Consulum migorumque dvilatia, hsec est disposition iUorum nutu 
^ hsec genintur.' — Otho, pw 718* 

' See the Lik de Pac. Const already quoted. 
Sobeftson*s Charles V. yol. i. note 15, mjh^. 



414 AN HISTOBIGAL INQUIKY CONCBRNING 

nertffey and mabthet,. o^umaiimg of certain chief cttnen^ aad 
calkd tht Oomilhni fwvdm dommanim ^ 

Bill it is M Frahce that we hare the besi evkietice of the 
exHtteade of muKidpal cstabUahneiito^ and other privilegesij in 
narntk of the cM^ of that oouBtry^ froih a very aodent period. 
It isf aH all eventiiy dear, that the eomnm^s whirit b^m to 
be grafted by the Frertch aof ereigna in the llMi eetitwry^ 
oaniioi be aaid to have bear in every instance the ade origin 
of the intehial government^ ahd other ifliarmnifies of Acse 
dtiet. On thia subjec^t, we ought not ta be deceived by the 
change of names, aa applied to these eBtaUishments; nor 
condttde, beeausie magisirateB bearitig* the name of auryoi', 
or diat of echevin, may not have existed at very remote 
periods, that, therefore, no similar ofBce was theaf loiown. 
We have many instances eveti in our own oountry of the 
same fanctionaries having been at difibrent periods dii- 
tingufehed by very different appellations. Thus, the de- 
nomikiation of Alderman, which was at one titee well known 
in Scotland, is now quite extinct in this part of the isiaBd. 
Nor is it necessary to this view, that the niunidpal in- 
stitutions dioUld be shewn to have esdsted in France since 
the 11th century I in precisely the same form which they pos- 
sessed in more ancient times, or during the vigour of the Bo- 
man empire. It is sufficient to enquire, if there is evidence of 
the existence from a remote period, of institutions of an ana- 
logous description, in respect of powers, and 6f the iliode of 
nomination K 

^ Mun AliU^ v6L iv. p. 6A. 

• The AbM Diibos» ia his oritioal history of the ettshUshnent of the 
Ffehch momatdix, has adopted this View of the ancient privil^fss of the 
Unnd of his country; and has iUustmted the suleeet with much in^ptauity 
and learning. flUa viei^a may be seen finmi the foUowing pnaay a*- 

* II inrolt que qadquea-una de ass Stoata out suMat6 noa seidement 
*• sous lea deux premierei racea, mais encore aous la trabiinM) «t que c*SBt 

* A leur durie, que pluaieuts viUea ont dS i'avantage de joalr toajoura du 

* Droit de Commune, quoiqu*elhts fbiaent encUvta dans lea donsinsa des 

* grand Feudataires de la Couronne. C*e8t parceque cea villes avoient 



THE OOKSTITUTION OF TOWNS; 415 



AocMding to the Abbfe Duboo^ aeYend ettkb artf XO^ be 
found, such a» Toulcniee^ Beunsy add' BouidgAe^ and dianry 
o^kethf in possesnod, about the 12Ch^ century, of mUDidpa) 
tfltobliahmmtsy withdut any trate of charters by ^ith aueh 
privilege oould bahre been granted by the 8udeessiv<$ sove- 
reigB8« 6r finding them included iii any enumenmon of towito 
to whom such immunities had been cdnoeded ^ When Cfaifr-* 
left IX. by a btw called PEdit de Moidins^ dqoirived the 
municipal magislfate^ of the right of judgidg in dtil ntet- 
ters» reserving to them a jorisdiotion in oriisBinid idEMrs and 
matters of police, several cities opposed the execyiion of this 
law ; atid'the ground whi(ih was maint^ed by A)me of them 
was, that their privikges were older than the French mo^- 
narchy itself'. In particular, this ground of opposition was 
strongly uiged by the town of Reims. In a discourse com* 
posed by Nicolas Beijief, a literary character of eminence, 
the fcdlowing view is given of the andent establishment of 
that dty. After maintaining, that it had possessed a ^nate 
from a very ancient period, he proceeds thus ':-— ^ Or la forme 
^ de oei ancien gouvemment est demeuree entiere k la villede 
< Beims jtoque aux tems que TEtat deft Romains ^nt 
«* dissip^, eUe a recu la gloir^ d^^tre soumise k Tempire et 

* domination de nos Rois, sous le legne dtequ^ ce gouveme- 

* ment a chang^ de nom et non d^ forme^ ayant iii tfpelle 
^ Echevinage, nom qui se trouve plus d'une fois dans les Ca* 
' pitulaires de Charlemagne.'' 

^ conierrft leur S^nat, ct que leur Senat ayoit consenr^ U portion d'auto« 
*' rit^ dont il joiitafioit dds le tems dee Empeieun Remain^ qu^on tivinre 
' que toiifi les Rots ^ la troideme xace, les villes dont j'entens purler, 

* 4ldent dija en poasenion du Droit de Commune d^un tems immteiorial. 
*• £n efffet, on* v(dt que oertainement elks en joubsolent soua ees Princes, 

* sans voir n^anmoins qu*eUea Teussent jamais obtenu d'ancun Roi de la 
' troblAme laoe.* Hist Crit. torn. iiL p. 601. 

> AbW Dubos. HisL C4t. torn, iii p. S04, liv. vi., cb. 11. 
'LojseaadesSeign. c 16, art 82. 
* Abbe Duboa, torn; iii. p. frlS. 



416 AN" HISTORICAL IKQUIRr CONCERNING 

Berjicr adduces^ amongst other proofs, the testiinoDy of an 
Englishman, John of Salisburj, who was on a visit to France 
in the ISlh o^tury. This person, in a letter, giving an ae-> 
count of a quarrel between the Archbishop and the chizeoa 
of Reims, relative to their municipal privileges, thusdescribeflr 
the grounds of accommodaUon proposed between them :<-«» 
^ £t primo quidem ei humilitatem exhibiierunt parali duo 
' millia lifararum, sicut multi testantur, conferre in serarium 

< ejus, dummodo eos jure tractaret, et legibus vivere pacere^ 
* tur, quibus dvitas ocmtinuo usa est a temporibus Sancti 

< Remigii, Fraooorum Apostoli ^^ 

In a supplication also presented by the town of Dijon to 
Lewis XI., iq the year 1477, we find them stating, that they 
had possessed a magistracy from a period of remote anti* 
quity ». 

Evidence on this subject may be derived even from some of 
those very grants of commune themselves. Thus, a charter 
of Philip Augustus, to the town of Toumay, in the year 
1 187, evidently confirms to the dtizens privil^es and cus- 
toms already existing'. The same observation applies to a 
charter granted by Lewis VIII. in the year 1211, to the 
city of Arras ^. Indeed, this latter charter is not framed in 
the usual form of the grant of a commune ; but is rather a 
simple confirmation of privileges already enjoyed. 

1 Hist Crit. torn. iiL p. 614. 

* * Contenant que la ville est ville de communaute, ii en icelle 4e tmU 
' itm$ €l itanekmM a maire et vingt echevina.* Madox firma buigi, 
*p.9a 

> * Buigensibus nostria TornacenribtiB pads instltutionem et communfami 

* dedimufl et con ccMim ua ad eoedem ubus et consuetu^Bnes quas dkH But- 

* ffemea tmiMmant ante inttUu^onem eomwmnim. He autem rant conraetit- 
^ dines ;* and amongst the customs whidi follow, the election of magb- 
trates is induded—^lpidlegium Acberii, torn, xi p. 345. 

* * Noverint universi pnesentes pariter et futuri quod jura eimmuetrndingt 

* eioiiMii Atir^aieniium perpetuo ineonetnee mandh tUemmut^ vldelioet,^ Ac 
and then follows a long list of privileges, in the course of which mention 
is made of the mayor, sctbini, and commmmu SpidL torn. zi. p. Seti 



TttE CONSTITUTION OF TOWNS. 417 

If the institutions confinned by the monitfdis of France 
shall be held, in some instances, to have previously existed, 
it may be inferred, that, as a uniform systan of munici- 
pal goivermnent was established in France at that period, 
the institudons granted to those cities which did not pos- 
sess them before, were modelled on the ancient establishments 
of other towns; and thus the connection is maintained be- 
tween the ancient and the modem municipal government of 



What may have been the precise mode of election of the 
magistracy in those cases in which it may' have existed previ- 
ous to the grants of the communes, it is, perhaps, not very 
eaqr to determine. The charter of Toumay, indeed, already 
mentioned, is so expressed as to lead to the conclusion, that 
the mode of election then confirmed, was the same as had eib- 
iited pievioas to its date ; for this form of election is said to 
be one of the customs or privileges formerly enjoyed and then 
ratified. The ri^t of nomination, in this instance, was not 
enjoyed by any large "body of the citizens, but was a sdf-elec- 
tive system, vested in thirty jurats, who were to hold the 
office during life, and to fill up the vacancies occurring by 
death ; and two of these were to be prcBpoaMy but the mode 
of their election is not stated ^ We find a self-elective sys- 
tem also granted in the charter to Arras before mentioned ; 
and it may be observed, in this instance, that the mode qfeUc- 
Hon was a new grant, and distinguished from the privileges 
ratified, as already enjoyed ; although it appears from the de- 
tail of the previous immunities, that the offices themselves of 
mayor and scabini already existed. The form prescribed is, 
that the twelve old scabini should, every fourteen months, elect 
four new scabini, who should choose four others, and these 

> ^ In communia Tomac debent haberi trlginU jnnti, de quilmfl duo 

* eruni pnepositi, et cum unifc vel duo vel plurea ex iUis trlginta decesw- 

* rint, supentitcs juratl numerum de aliis auppleant supnufictum.* Spidl. 

* torn. xL p. 349, No. 3S. 

nd 



418 AN HISTORICAL IKQUIKT CONCERNING 

ibw a like nnifiber ; which twelve tiiUB obooeii, should odd- 
tinue in oiBee for the next foaiteen months ^. 

Another example is aflbrded -by ^e oonstkution of Rouen 
and of Falaise, winch wasenjoyed by thett in commaD) 
and was established or ratified by Philip Augustas. This 
eonmsted, in the first place, of one hundred prineipdcttiflen^ 
called pares or peers, chosen by die- select body itself. Of 
this number, there was a head called hmmt, twdve e^bevins, 
and twelve counciUors. The ordinary management of the 
town was in diehandsof theniayor andechmns, who called 
suchof the coundlloni to thormd as thqr thought fit. There 
were also sMed meetings of conndl, eonnsting of the m^or 
and the whole echevhis and councillorB ; and more nnfy of 
the whole hundred peers 1 In the eleetion of the mayor of 
these towlis^ there Svas this peculiaiity, that a list of three 
prittcipa] dtisens was presented by the towfas to the Ung, who 
named one of them as the diief ma^stnite. In tbe other cb» 
ampies which have been alluded to, we do not find any men- 
tion of the manner of electing the maydr or propositi 

In some instances, we find a more extended form of eleo- 
tion of ibe magistracy expressly sanctioned. Thus a tight of 

* * Pneterea conceflsimiis buigenslbus Attrebati acabmos noTindos te 
« ainguliB qualuordedm mensibuB in quatuordedm menses : ita quod poit 

* tlngulos quatuordedm menses scabhd qui eo tempore Aieriat, el^ent 

* quatuor probos et Icgilimos Tiros dvitatis, priua pnestitosscramentoqiiod 

* m«a]s l^timos bona fide eligent | et iUi quatuor eligent alios quatuor 

* yinos prqbos et discretos per suum sacramenlum, et iterum secundi qua* 

* tuor eligent alios quatuor per suum sacramentum similiter, et isti duo> 

* dedm erunt scabini per quatuordedm menses, ita quod in scibinatu bod 
^ poterunt esse sunul consanguine! germani, nee proximiorea, asc soeer, 
^ nee gener* Quicunque autem m^jor alt, non potest baboe in acahinitoi 

* consangoineum germfnum, nee prophiqinorem, nee socmm, nee gene- * 
*nun, quemadmodum dictum est de scai»inis.' SpidL toso. xL p. SH 
Mo. 43. 

* Hist de Paris, par FeHbien,'' voL L jv ix., where the chsxtulaiy of 
Phlttp Aug. is dted ; and Brady, p. SS. 






THE CONSTITUTION OF TOWNS. 419 

ntfBiiig oonsoks who appear to have been the aiitne as the 
edievins, w as the jurats, was given at an early period* to the 
oommMnUj/ of the towti of Clainhont ^^^ and we shall imme- 
dialely see, that this exprdssron cwnfrnmiikf induded a oon^ 
riderable body of the inhaUtants. Indeed, if we are to 
bdieve Loyseau, who lived in the laHer portion df the 
axteenth century, the echevins, in his time, were usually 
elected in the general assembly of the town, or in a meeting 
of deputies fiom eiich quarter, SEccovcKng to die usages of 

eadi town; and the bM fciliiBtionaries had no voice in this 

t 



I », ,tnj»;»« lii 



The nature <^ the grant <tf a commune seems to have been 
the fonnation, liy royal authority, of a bond of mutual asso- 
ciation amongst the inhabitants of a town, espedally for the 
purposes of mutual defence ; and in order to fiuther the ge- 
neral object of the union, certain rules were ifatified by the 
r6yd charter, tending to the security ctf life and property ^ 
In a charter granted by the Earl of Flanders in the year 
1188, we find the .expresi&on of omicWa or fellowship em- 
ployed, inAead of that of commune, and in precisely the 
same acceptation \ This union appears to have been com- 
posed of the inhabitants generally, who were all required to 

' * Item concedlmua quod sit in villa Claromontensl communitas seu 

* univenltaii «t conaules^ et quod communitas vel migor pan ponit ftcere 

* vd oonstltaere conaules quos et quales sibi videbitur fkdeodi, qq« com* 
< BKiBitasst coosulea habeant potealaiem plenariam que dabettt et poasunt 
^'habere coniulea de conmietudiiieet jure.* A. D. 1S20. Maddoz, Firm. 
Burg. ^85. 

* * £a France il n*y a point d'autre oeremonie, ainon qu'en aoemblic 

* geneimls ils la Tille ou de certains deputes de dtacun quartier, lelon lea 

* fiMmeapartieiilieEea de chacunevUley on elit lea e^erina aami nomiimtion 

* pneadente de oeuz qui sorteiit de dun^* Dea Offloea, liv. ▼. c 7* 
art 48. 

'4leetbe eumplea of tlKse charters in the Spieileglum AdMrii* voL xL 
Ac ; and alao the general view of their provisiona given by Prinopal 
RobeitcoD, Ghsrles V. veU L note 16. 

* Charter granted burgensibus Arise. SpiciL xi p. 352. 

Dd2 



480 AN HISTORICAL INQUIRY CONCERNING 

swear to its preservation K By the commune^ therefore, when 
8[qiiied to those to whom the gnnt was made, and the ho- 
minei communis are not to be understood the ruling part of 
the town maidy, or any other select number, but that gene- 
ral body, who were partakers of the benefit of the unioa« In 
fiuther proof of this statem^t, many drcumstanoes may be 
meirtiooed. The commune appears to be always granted to 
the burgesses generally, and not to any particular number*. 
We sometimes find the iota cammuma laid under an obliga- 
tion to meet the king and his army when he was proceeding 
on any expedition ^ a proviaon which would have been of 
little benefit if the rulers only had been bound to join the 
sovereign. Occasionally the hommes de commuma are spoken 
of expressly in oppositiim to those in authority^. And at 
other tames, we find even females included under the collec- 
tive appellation ^. 

Although it seems manifest, that the communes granted in 
some instances were merely ratifications of privileges already 
existing, yet the principle was early adopted by the Frend) 
monarchs, that no town could erect itself into a commune 
without a royal grant The town of Nevers having attempts 
ed to form itself into a commune in the time of Louis VII., 
that monarch put a stop to its endeavours, and compelled it 

' Charter of Philip Augustus UrU Suesnonenii, 1181. SpidL zi. 
p. 844, No. 15. 

* * LudoTieuB bui^gensibuB SuessiMieoslbus communiEm inter se hs- 
^ bendam eonceasit' SpiiiiL voL xL p. 340. 

' * Si vero versus Arteaiam cum exerdtu venerimus noa vel.8UOceiaoraB 

* noatri. Ma oom mm i im TWwmi usque adeandeQilocuiii,&c.iiaMiae«Hrrifv 
^Mifyftc.; ethoc aenritium nobis fiidendo homhm rarMOi emnt qiiitti 

* et liberi ab omnibus aliis conauetudlnibua,* &c. SpldL voL xi p. 851. 

* * 8i homUMs de communia diquando contn hoatea aaoa exiexiat, mil- 
^ lua eomm loquetur cum hoatibua sula, niai de Ucentia eorum qui con* 

* aunkm custodhntr* SpiciL vol x. p. 648. LoutaVIIL toGiiqteum 
1188. 

^ * Nee unquam lioebit ab aliquo vel ab olifM de communis manum 

* moriuam exigere.* Spieil. vol xi. p. 844. 



THE CONSTITUTION OF TOWNS. 421 

to break up the asflodation^ A more extended principle 
was afterwards sanctioned by a decree of the Parliament, 
which, whilst it suppressed, in the year 1318^ the commune of 
the town of Chelles, on the same ground as in the case of 
Nevers, gave this declaration, that no town is entitled to have 
a mayor, jurats, and community, without the royal warrant ; 
thus sanctioning the prindple now adopted by the nations of 
modem Europe, that the crown is the fountain of magistracy 
and jurisdiction '. It is plain, however, that the adoption c^ 
this prindple by the French monarchs, on principlea ci 
very obvious expediency, will not prove that, as maUer 
of hiHon/y many French towns may not have possessed k 
magistracy before any grant of that privilege by the sove- 
reign. 

We have already had occanon to observe some of the va- 
rious denominations under which the different municipal 
functionaries of the French towns were known. The chief 
magistrate was usually called mair ' or mayeur, or in Latin 
major ; and sometimes also, prscpositus, or prev6t, as in the 
case of Paris ^; and of Toumay, which had two praepositi^ 
The magistrates next in authority were usually called eche- 
vins % in Latin scaUni or scavini. The jurats were either 
the same as the echevins*^, or, perhaps, sometimes included 

> Hist de Paris, par FiUbien, torn. L p. xiii 

* Patet quod vilke luni licet habere ougorem et Juiatoa, et commu- 
niam sine Uteris regis ; Ibb 

s < Mair de ville ; du Latin major^ et non pas de I'Allemi^^ nuyvr.* 
Diet Etjm. de la Langue Frangaise par Menage. ^ Mfyor,* says Spel- 
man, * simplidter didtur quod inter suoe collegas, &c. magis eminet* 
Olos. p. S81. 

« See<i|%«»49& » See mpra, p. 417- 

* Echerin is derived hy Lo jseau, firom the French verb edioTer oocmv ; 
but by the author of the Diet Etjrm. de la Langue Franc, from the bar- 
barous Latin word Seabinus ; and this word again from the Gkmuui, «os- 
/wfio judex, or mhtppen judices. 

^ Lojseau des Oflkes, p. 469, No. IS. 



492 AN HISTOBICAL INOUIEY C0NC£EN1NG 

aho the coMwriHiHBB ^> Thei oilier appeUatbes ooottioBaUy ap- 
plied to tbe Qchevifis, imre eofMib» gmnmmeur$f tapUaum^ 
pairs \ whidit laBt -denonniiatioii was^ hofrerer, aoinctinies of 
a moBe amipreheiiaiia aatvure '- There was also in aevenl of 
the tonou of Fnnoe.a towapCoundlS oompbsed of a oertab 
nmafaer oC i]idividiial% holding their niuatioiis for life» aod 
aaUad^Bometimeb oameiUerSf and aoinednles pairs^ and tnm 
whose niunbeir^:aoBonding to Xojneatiy the edie^nd and olho* 
prind]^- oficera.Wei;ei usually didsen^' 

In ygder totaftaiBtain a oertittn de^^ree of dependence of the 
magiitracy, oni the .aoirereigD, . it wti» profided by anosdinanee 
in the year 15fi9, that the mair detected by the tovos^ or at 
least by the cUeC cities^ should be reemtd by, and lake 
the oaths before, the principal rojsi officer of justice of the 
town, OF before the justice ordinary \ 

.The first oocasidn on whidi the townsof Fsaaee sent depo- 
<ties to the states>g«iend of the nation, is understood to^ hate 
besn in the year IgOSy in the reign of PUlip the Fair, being 
nearly two hundred years after the time when regular grants 
of comnwwiities were first made by' the French manarchs. 

..Weshd now proceed togi^e some account of the origin of 
those snbovdteate inoorpon^ons, known in towns under tbe 
denominations of GUds and Crafts. , 

As6ociationa:of meidiants and of artificers, similar to the 
societies distinguished in modem times by the names of gBds, 
crafts, and mysteries, were well known amongst the Romans 
under the denominations of tbe ^ Collej^um Mercatorum,^ and 
' the Collegia Opificuni.' Those of the tradesmen, contmiy to 
what holds in Scotland, appear to have been -nme ancient 

^ See constittttion of Rouen. Bnuljr, p. 23. 

* Loyieen,nMnip. > Con«titutl6n of Rouen. UMtmpra^ 
« Cornell de ViUe. 

' Des OflksM, p. 46a, No. IS. 

* Loyieau, des OflBces, p. 469, No. 83. 



V 



THE CONSTITUTION OF TOWNS. 488 

than the mercantile oolk^. Their origiii is iMwigned by Plur 
Uidi to 8o remote a period as the reigo of Numa PomfHliuB, 
who^ aocGidiiig to that author» institoted no fewer than nine 
opOtffti of different kiodB of artifiocrB K Whatever found»< 
tion there may be for this account of their institi]ljoo> it is at 
aU events certain^ that mention is made, of vaiipue of these 
oolkges or sooeties by diffecent Rpmaa autborsi and in the 
books of the civil law '• The ooUf^um mocativum was in*, 
slituted in the 859th year of the ei^ ^ 

Besides the mercantile and meebantcal flnfloriafiopHj, theie 
were varioos other •uniled tidies, as tho^e of the augurs and 
priests ^ 

The members of certajm institutyms of this descriptkn w^ 
called < Sodales ^ ;' and a proviaon of a law of the Twelve 
Tables, reblmg to these assaoiales has been preserved ^ 

These associations had probaUy become very numerous 
and of various desciiptioiisy eo as at last to excite the jealousy 

' Aooordiiig to Plutarch, the object of Numa in dividing the people in. 
to thoae societies was to destroy the cQstinction between the Boman and 
the Sabine poptdation of Rome, an object which he hoped to aocompfish 
bj sepanting the whide people Into snull diThdmifl, and so canalng to be 
fc^BPtten the twofold aeparatton axlaii^ ftwn the diflferenoe of the na- 
tiona The division was as follows : 

' u§ rmvn rvmymystf, U mvf » irm^m mriu^ 9vmfut. uMfitmii i% xm 

* Mm fvt fU9 Turnt tv( h 'P«^vAtt w#A4nK>'— Plntarcfai Numa, c IJ, 
' See Boeaini's Antiquities, p. OSS. 
> fl%0Bius de Antiquo Jure, Civ. Eom. lib. ii c 1<K 

* Sigonius de Judidis, lib. ii. c Sa 

' Sodales sunt qui ejusdem coUegii sunt, quam Grteci trm^mt vocant. 
Caiua, L 4. ff. De CoUegiia. 

* His autem potestatem fiidt kx, pactionem quam vellent sibi ferre, 
dum nequid ex publica lege corrumperent« L. 4. ff, De CoUegiis. See, 
also^ Rosrini, p. 603. 



424 AN HISTOBICAL INQUIRY CONCSRNING 

* * 

of tbe govenunent ; and the oonsequenoe was, that laws were 
passed at different umes for their suppressioD, with die excep- 
tion of the more useful of the mediainGal sodeties ^. These, 
it 18 dear, stffl continued to exist, as we find them mentioned 
by Pliny, and in the Ingest and Ckxie *. 

In the Digest ', it is laid down, that the power of establidi- 
ing such bodies was not permitted to all persons, but was re- 
stnuned by the laws^ the decrees of the senate, and the im- 
perial ordinances. In addition to the sodedes of a mechani- 
cal nature there noticed, we iind mention made of a provin- 
dal association, called the * Collegium Navicularionim,^ winch 
must have been a mercantile body. There appear to have 
been in the province of Gaul several bodies of those navicu- 
larii or nautse, as they were oden called ^ ; and they deserve 
attention, because attempts have been made, as we Aall pre- 
sently see, by some of the historians of Paris, to deduce the 
modem system of municipal government of that dty from one 
of these naval associations. 

These collegia partook of the nature of corporate bodies, 
being capable of possessing common property and funds, and 
having a chief person or heiul, called in the digest, ^ actor,* 
or * syndicus,^ who appears to have insisted in their law-suits^. 
At other limes, we find the appellations of ^ primaies profes- 
^ sionum ^^ and of * magistri V applied to the chief persons 
of these assodations. 

Institutions of a similar nature to these collegia may pro- 
bably be discovered in the greater number of the nations of 
modern Europe. In Rome, in modern times, we find men- 
tion made of collegia or universitatcs of various mercantile 
and mechanical bodies ^. In France, according to Loyseau *, 

1 Sigon. de Antiq. Jur. Civ. Rom. lib- iL c. 12. > Ro«ini, p. 603. 

' L. i. fr. quod cujuscunque universitatiii. 

* Hi9t. de Paris, par Filibien, torn. i. p. Ixxxi. 

^ fT. eod. Tic " L. unic. C dc MonupOlUt). 

^ SigoniuB, ubi sup. " See Madox, Fir. Burg. p. :)t. 

^ De» Officer, liv. ▼. ch. vii. No. 74. Ac 



THE CONSTITUTION OF TOWNS. 425 

there were two classes of these subordinate communities ; the 
one class, consisting of the diflferent bodies of the liberal arts,- 
and the other, of the various associations of the mechamcal 
arts. The latter class were corporate societies, the members 
of which were sworn upon their entry; from whence the- 
trades to which they belonged were called Metiers JuriSf and 
the towns in which they occurred, ViBes Juries. In France, 
in aadent times, there were only certain towns of this de- 
scripcicxi; but by a royal edict, in the year 1581, all the 
towns of that country were put on this footing. These trades^ 
societies had officers, distinguished by the various denomina- 
tions of JuriSf Visiiet$rsj and Gardes de MHiers. They were 
chosen either annually, or every two or three years, in the 
assembly of the masters of the trades, before the judge-ordi- 
nary of the town, who received their oath. They had no 
other salary than a portion of the fines and confiscations^. 

There appears to have existed in Paris an association, per- 
taking very much of the nature of a mercantile gild ; and the 
more worthy of remark, because its system of internal go- 
vernment seems to have been, to a considerable extent, iden- 
tified with the municipal government of the town itself. The 
association got the name of La Marchandise^ or La Marchan- 
dtsedePEau^^ BxtdscnneiimescSLaCof^aeriedesMarcheanx 
de VEau'; and appears to have consisted of those person who 
had the privily of the river Seine for mercantile purposes ^. 
No one enjoyed the right of the river without being, as it 
was expressed, hamsb' de la merchandise de Veau^ — i. e, made 
a member of the hanse, or association of the river merchants. 
According to some writers, this association existed at a pe- 
riod of the most remote antiquity, even so far back as the 

* This account of these mechanical associations is that given by Loy- 
aeau (Des Offices, liv. v. ch. viL No. 77. ei teq.) who wrote in the end of 
the sixteenth century ; whether they may be precisely on the same foot- 
ing at present, I do not pretend to say. 

* Hist, de Paris, torn. i. p. xxix. ' lb. torn. i. p. xxzii. 
^ lb. torn. i. p. xxvii. 



426 AN HI8TOBICAL INQUIRY CONCERNING 

idgn of the Emparor Tiberius^ and, at that time, formed one 
of thoae bodies of nautae or navictilarii which have been al* 
ready notioed \ It has been conjectured, that the chief mu* 
nidpal government of Paris was always vested in this body, 
or in its principal members ; and that, when the town was in 
the time of the Romans, under the oontroul of the office 
called a 2>g^foMor, that magistrate was selected finm this body *. 
Without determining what weight may be due to* these sup* 
positions, it is at least certain, that, in the course of time, the 
principal magistrate of Paris reo^ved the denomination <if the 
Prevti des Marduxnda ^ and some subordinate fimchonawes 
were occasionally called lA EsAevku de la MankemidUe^ or 
Ia JwresL de la confraiSrie *. These titles first occur in some 
police regulations, drawn up in the year HtSS K There waa, 
however, another functionary, called the PrevSi de PariSy 
whose office seems to have been of more ancient date than die 
fiome at least of the prev6t dee marchands^ ; but if the tar- 
mer ever enjoyed the chief authority, he appears to have af«> 
terwards yielded to the higher oontroul of die latter. 

^ Hisk» de Parif, torn. i. p* ludz. According to the author of this His. 
ioTjy p. Izxz, a atone was found in Paris, in the jear 1711, with this in- 
acripUon : « TIB. CAESABE. AYO. lOVI OPTVM. iCAXSVMO 
' M. NAVTAE PA&ISIACI PVBLICE POSI£RV*TN.* 

* Ibb torn, i p. licyriT, and other paaaagea. 

* I^oyaeau dea Seign. p. 16(K ^ Hist, de Paris, torn. i. p. uxii. 

* Ih. • lb. p. iv. 



THE CONSTITUTION OF TOWNS. 427 



CHAPTER II. 

USE AND FEOGRSSS OF THE GOVSEMUENT OF TOWNS IS 

EMGLAVD. 

D0EIKG the time of the Romans, we learn that there exist- 
ed in Britab twenty-ci^ht cities, besides castles or fortified 
places ^ ; and we may reasonably suppose, that the system of 
municipal government which was estidilished in the different 
cities throughout the various provinces of the Roman empire, 
would extend also into Britwi. 

But there can be little doubt, that, if such institutions 
were established in this island at that period, these were sub- 
verted between the final departure of the Romans and the 
Normsn conquest, during which interval successive nations 
introduoed their own peculiar establishments. There is no 
evidence that any of those nations took any pains to maintain 
the Roman laws and customs, as was done by the Franks in 
the GaQk proivince. 

During the Saxon period, we may therefore look fer a new 
state of things in the towns ; and those traces which are at 
the present day to be found of Roman municipal establish- 
ments, if such they are really to be conadered, were princi* 
pally, although perhaps not entirely', introduced by the 
Normans. 

Durii^ the Saxon sway, there was a considerable number 
of towiis^, which, although certainly not then possessing the 
same extent or importance which they afterwards obtained, 
were probably not in so inferior a condition as has some- 
times been represented. Of these, the principal were Lon- 

■ Oildaa ; Historia. See a list of the cities, Appendix to Bede*8 Hist. 

Eedea. Num. iii 
* See what is afterwards said as to the Mercantile Gild. 



428 AN HISTORICAL INQUIRY CONCERNING 

doD, Winchester, and York ^ We may presume that the 
opulence which writers of the reign of Henry II. describe as 
then existing in London, including its IIS churches, 13 oon* 
vents and 3 colleges or academies, had not entirely arisen 
since the Conquest*. The charter which the Conqueror 
granted to that city is undoubtedly not calculated to raise 
very high ideas of its importance'; but, on the one hand, wc 
may remember, that he spoke as a victor to a subdued na- 
tion ; and, on the other, that he confirms certain privileges, 
such as they arc, which had existed in the time of the Con- 
fessor. 

From this charter it appears,* that London at that period 
was under the controul of an officer called the Portreve * ; a 
functionary probably known in other towns during the Saxon 
period, especially those which were maritime f 

1 Littleton's Heiu-y II. voL iL p. 317* Hume*8 Hist« App. L 
s See Littleton, voL iL p. 315, where Fitzstephen and Peter of BloU 
aredted. 

' The following in the Rnj^liah tiansIaUon of this charter from the 
Saxon, in which it was framed : * WilUam the king greets WiUiam tbe 
^ bishop and Godfrey the portreye, and all the buigesaes within London, 

* French and English, friendly ; and I declare to you, that I will that you 

* be all law-worthy, as ye were in King Edward's days ; and I will, that 

< each child be his fiither's heir, after his fiither's days; and I will not that 
' any man command any wrong to be done to you. God you keep.'— 
Bndy, p. 16L 

* Portreve, from the Saxon party a harbour or town in general, (See 
Merewethers* West Looe Case, p. xxxix.) and twe, or ffreve^ praepontus. 
« Dicebantur portgrefii Hon solum portuum custodes, sed per trandatlonem 
' oppldorum etiam urbiumque pisefecti {* Spelman eo voce. * Be^e aUas gve- 
« ve, Germanice grave, pnepo6itus,prefiBctu8. Hoc a Saxon ^srsoa, illud a 

< rewh quae idem sunt ; gergva enim a reoa proyenit, atque ambo a fwwm 

< id est rapere, &c. quod mulctas reglas et delinquentium fiicultates in fia^ 

* cum raperent, &c Est igitur Reve idem quod Ballivus, qui in vlflia et 
i que dicimus nuweriis, domini personam sustinet ^usque vice omnia tfis- 
' ponet et moderatur.*... Spelman voce Reve. We have here the pbln 
etymology of our Scottish word grieve. 

' The Tungreve appears to have been properly merely a manorial offi- 
cer, « TungreriuB quasi Tungereve, i e. vilJse propositus, VUIicus. Ho- 



THE CONSTITUTION OP TOWNS. 429 

According to Blackstone, the elections of all the Saxon 
magistrates, whether sheriffi, portreves, or others, were by 
the people *. It must be mentioned, however, that the reve - 
appears to have been frequently a king's officer «, and that 
there is evidence that, in some instances at least, he was ap. 
pointed by the king » ; but possibly the town-reve may not 
have been in this situation. 

In the boroughs and dties, there was an assembly called 
the Burgmote *, at which the burgesses attended, and which 
was held at stated periods, and sometimes convoked on ex- 
traordinary occasions \ This court is classed along with the 
shiremote in the laws pf Canute \ and was of a similar na- 
tuie. The latter court was attended by certain classes of the 
people, the bishop and the alderman presiding ^ but merely 
for the purpose of keepng order, and giving their opinion «. 

» diemo, vulgo, the bayliff of the manor.'... Spelman voce Graphio. Tun 
and Htm, and the Latin wOa, signified ori^naUy in England jirwHuw.... 

SeeSpehnan. 
« VoL iv. p. 413 ; See alao Spelman voce Folkmote- 

« Wert Looe Case, p. ilii. «* ««9- 

' Laws of Athelstan, as cited West Looe Case, p. xliii. 

♦ * Burgemotus, Sax. BurgmoUt, Curia Burgenris, conventus buigi vel 
' dviUtis ; dm* enim et buifg, oppidum dvltas ; mote et gemote conventus. 
t LL. Canula, M.S. cap. 44. ' Et habeatur in anno ter burgeemotus, et 
« scbiremotus bis, nUi sepius fit; et intersit episcopus et aldermannus, 
" et doceant ibi l>ei rectum et sificull.' SaUds MaUebeigiuni,' Spelman 
wceBurgcmotus. And again, voce Folkmot«, ' Duo folkmotorum genera 
* ptimusn a dvibus celebratum, quod burgemot.is inde didtur.' It may, 
Z^iMm, not be unworthy of notice, that this Saxon burgh court is or- 
teS^ the law ofCanute, to be held the same number of fimes in the 
y«tf, as Uie andent Scottish burgh^rourt, at whidi aU the burgesses weiis 

bound to attend.— Lcga>- Burg, c 43. . ,. - ,. 

» See Scriven on Cop^olds, ii p.. 804, where lU ordmary meetings are 

«|d to have been held monthly. The Uws of Canute, already quoted, 

(see note *.>, say three tfanes a-year. 

« See note *. » ^ ^ ^ a9sl 

T This alderman was not a dty officer. See wfra, p. 43w. 

» Hume's Hist, of Eng. App. i. 



4S0 AN HISTORICAL INQUIRY CONCERNING 

The port4reve, or other town-magistrmte^ had the aaoie duty 
in the bui^ote, and the right of calling extraordinary meet* 
ingB by the sound of the motbell \ 

About the time of the Conquest, and subeequently to that 
period, some towns in England were held of the king, and 
others of the nobles or dignified diuichnien ; and were said 
to be possessed in dominico or demean of the ao'vereign or 
other superior '. The king, according to Mudxas, had a right 
of absolute property in his demean towns, and in all the pio* 
fits of its fairs and markets '. The method, however, was 
adopted of letting out the town in firm to the burgesses, eitlKr 
for ever, or for a term of years, (or a certain annual duty or 
firm^ Thus king John made a perpetual grant in fee- 
firm of the town of Yarmouth to the burgesses, for m an- 
nual reddendum of fifty-five pounds ^ The town of L]rme, 
in like manner, was granted to the burgesses by Edward III. 
for a reddendum of thirty-two merks ^. Dorchester was grant- 
ed to the burgesses by the same king, for a reddendum of 
twenty pounds ^. 

Oocaaonal aids or talliages were also levied ^ The pay- 
ment of this talliage seems to have been regarded as the con- 
dition on which the privileges were granted by the soverdlgns, 
and a refusal to contribute it, a suflieient warrant for with- 

* Scxiven on Copyholds, iL p. 804. 

* Brady, p. 89 ; Madoz, p. 15. et seq, 

> P. 14. « Madox, p. 1, and 18, ; Brady, p. 8& B. 

^ * Sdatis po8 concessiase, et presenti carta nostra, confirmaate buigenaU 

* bus nostris de Gememua quod habeant burgum de G^ememua ad feo£ 
« firmam in perpetuum, et quod burgus Ole flit Uber buigus in perpetuum, 
*• et habeant socam et sacam tol, et theam, Ac reddend. inde aimuatim 

* quinquaginta et quinque libras numero,* &c — ^Brady, App. No. 2. 

* * Sciatis nos concesssisse, et hac carta nostra, confinnasse dikcUs bur. 

* gensibus nostris ville nostrse de Lyme, in conntatu Borsetse, dktam tiU 

* lam de Lyme :—Eeddendo inde nobis et h^redibus nostris per annum ad 

* Scaccarium nostrum triginta et duas marcas.'... Madoz, Ftrma, p. 44. 

' Madox, p. 20. « Brady, p. 4?. D. 



THE CONSTITUTION OF TOWNS. 481 

dnwag ihoBe immuiuUes ^. Fines were ako paid by towna^ 
at diffioent times, to the kings, for ratifications of privi^ 
Msffes • 

There are some entries in Domesday-Book which appear to 
be not veiy consistent with the idea of a general state cf in- 
dependent jurisdiction in the towns at that period. In va- 
rious biyi^hs*there are said to be burgesses, over whom the 
kings, both Saxon and Norman, or some lay or church 
superior had jurisdiction'; and in the same town there 
q>pear sometimes to have been burgesses both of the king 
and of subjects^. On the other hand, we sometimes find 
mention made of a very small number of burgesses in 
some particular town, in possession of their houses wi^ 
juriMction. 

Many charters are preserved, granted by the monarchs to 
Aferefit dties soon after the Conquest The privileges coo- 
fetred are generally immunity from certain duties; sometimes 
a mercantile gild ^, at other times a market K Nearly all of 
them contain clauses relative to jurisdiction or magistracy ; 
but these are not of any uniform style ; and are ofte^ expres- 
sed in the barbarous language of the day. Thus the charter 
sometimes granted socan and sacan^ infangenthef and utfao^ 
genthef, expressions importing a right of holding courts and 
exercising certwi kinds of jurisdictipn ^ ; of which clauses, we 

' Bndj, 47* aad the cases there cited- 

* Stewart on Public Law, p. 320-1. 

' See yarioufl examples of this ; Bradjr, p. 9, 10, 11. 

* ^ In Norwico de 738 buxgenabus Bex et cornea habent socam aacam 

* eioonauetudlneni, de 50 SUganduahabuit aocam aacam et oommendation- 

* cm, de 22 Heroldua habidt aocam aacam et commendationem, et unna 
'eonim ita dominicua eaaet ut non potuit deoedexe vel homagitwi fiwere 

* aine qjua Bcentia.'— Bradj, p. 6. See an example of Church Juriadiction 
orer Buxgeaaea, p. 13. 

^ The granta of the mercantile gUd will be afterwards more fuUy con- 
rtdcfed- 

* See the charters in Bradjr^a Appendix. 
^ See these worda explained by Spelman. 



4SS AN HISTORICAL INQUIRY CONCERNING 

have examples in the charters of John to Yarmouth ', and to 
Dunwich ^ Sometimes, also, the privilege was granted of 
not litigating any where but within the burgh, except in par- 
ticular cases, as in the crown pleas, and with respect to land 
without the town. Of this privilege we have instances in a 
charter of John to the burgh of Helleston', and of Henry 
III. to Norwich ^. Sometimes the king^s oflSoers and justices 
are debarred from meddling with them, as in the diarter of 
Henry III. to the burgh of Wallingford ^ 

The charters of those times do not appear to have usually 
contained clauses expressly giving the right to the towns of 
nominating particular magistrates or judges. A few, how- 
ever, are to be found of this description. The first is pro- 
bably that of Henry I. to London, in which power is ^ven 
to dect a vicecomes or sheri£P, and a jusddary ^ ; and the 
earliest which appear to be quoted by Brady or Madox, con- 
ferring the right of election of the ordinary civic magistrates, 
are that of Richard I. giving the right of election of a priB- 
paaihu to the citizens of Lincoln \; that of the same king, giv- 
ing the right of electing ballivi and justiciarii to the burgesses 
of Colchester ^ ; that of John giving the right of cboodug 
prcepoaUi to Norwich \ and that of Henry III. giving a like 
right to the same town ^^ 

' Bndy, App. Na S. • lb. No. 3. ' lb. Na a 

* Madox, Firm. Biixg. p. 43. * Bndj, App. N& 4. 

* It« quod ipsi dyes ponent viceoomitem qualem roluerlnt de seipsu, 
et justidarium quemcunque, vel qualem voluerint de seipda, ad curtodienda 
pbicita coroiue mee, et ad eadem pladtanda, et nuQus alius jusUdarius 
erit super ipsoe homing Londonis, et dves non pladtabunt extn diuum 
dviUtis pro uUo pladto. Bradj, App. No. 17_NotwithstaiidiiHr this 
grant of Henry I. we find from Maddox's History of the Exdiequer, 
p. 273, that London paid a fine of 100 merH, in the Sdi of Stej^en, 
for leave to choose a sheriff. 

' ^ Et dves Lincolnise faciant pnepositum quem voluerint de se per an- 
^ num qui sit idoneus nobis et eis.* Brady, App. Na 90. 

* Madox, p. 28. • Brady, App. No. 22. " Madox, p. 43. 



THE CONSTITUTION OF TOWNS. 4SS 

In several of these charters, we find mention made of the 
aasembly or court of the inhabitants under various denomi- 
nations. In the charter of Henry I. to London, the court of 
the folkmote ^ is noticed as then existing in that city ^ ; in 
that of Richard I. to Lincoln, the burgwarmote ' is ordered 
to be held only once a week ^ ; and in that of Henry III, to 
Walfingford, the burgesses are declared to be bound to an- 
swer only in thar own portmote^ and mention is made of 
the buigesses actually exercising jurisdiction. 

These courts are all evidently of the same nature, and had 
continued down from the Saxon times. Analogous to them 
in its ori^nal character, appears to have been the court leetj 
which) although it has been conjectured to have had its ori- 
gin in the Saxon period \ was better known after the Con- 
quest. It was appendant to a hundred or to a manor ''^ and 
also was frequently held within boroughs ^. 

Whether the origin of the court leet shall be traced to the 
Saxon times or not, there seems some reason to suppose that it 
had a different source from the ordinary motes of the Saxons. 
Considered as connected with a hundred or manor, it appears 
to be viewed as the result of royal grant to the lords of these 

' From Saxon, folk, populus ; and moie and gemote, conyentus. * Duo 

* fiJkmotonim genera ; primum a dvibus oelebxatum, quod bwrgtmolm inde 
' didtur, altenun a comitatensibus, quod ideo aeMrmnote appeUaverunt.* 
^ In pleno folcmoto, (i e. the county folkmote), eleglbantur heretochii et 
' vkecomites. In eo, suffragio populi, elect! sunt vicecomites * — * usque 

* ad annum 9 Edouardi 2, hoc est gratis 1316.* — Spelman, Gloss. 

* Bradys App. No. 1?. — *' in hustengo, neque in folkesmote neque in 
^ aliis pUcitis infra civitatem.* 

3 From Saxon huirg, buigus ; ware, vir ; and mote and gemote, conven- 
tits.— .See Spelman, vodbus bwrgwwre, bui^nsLs; and burgemoie.^ 

< Brady, App. No. 20. 

^ Curia portus, Spelman ; but as porte in Saxon seems to mean a town 
generally, see West Looe Case, p. xzxiz, pqrtmote may hare as general 
an acceptation. 

* Scriven on Copyholds, toL ii p. 807. 

' Ibid- p. 813. • Ibid. p. 814. 

B e 



484 AN HISTORICAL ISfffJlKY CONCERNING 

territories^; end whe» <ieciirriiig 'ti illiiu >buigby we^oeeaoon- 
ailj find.traoMof oAeers of ttMonim, miclKafl atewaids, joined 
to iity magistnilee^ which seem to lowk thai' laiiietiaiesy at 
leasl, it was to be viewed either as the 4MiinniontoouTt of tbe 
manor) aad of the BUUMiiial borough^voraft'deRfedrfronifdvB 
territorial judicatory K The opinioQ ef Brady vis, that < wheiu 

* erer themayw, bailifi, and buigemaiy areehoem by* the 
< jury in a court baron or at the Jeetj ihey were (ewnama»- 

* dent demeans V On the other hand, it -has beea . ooajeo* 
tared, that where the powers of a leet ooiift wiliiin bovoagh 
are exercisable by the mayor, Or other magisterial officer, 
the jnrisdiclion does not exist' undsr » crown grant as an ap- 
.pendant franehise, bat is a more immediate Tcst^ of the 

Ataglo-Saxcm jurispnidenoe ^; 

All classes of 'people, with* very 'few esceptionSfWete bound 
to attendance at the court leet ^, and those whoabetntedlihem^ 
selves were liable to amercements^. A jury, connsting of a 
oertun nundier of those who owedemt, formed an impormt 
part of ibfd institntito ; and^ ik later timea at kastytbeprin- 
cipri duties of the court appear to have devolml^pon*it''. 
We diall afterwards see the important eleecive privilq^ 
which ave vested in this court ^ 

Actordrng-toSpehnan^, the appellation of majmv asi^ 
plihl to a magistrate, did not occur in England till after the 
Conquests and the first city whose chief magistrate got that 
appellation was London. Bicfaard I. is said to have appoint- 

1 BbckHoDC^^Iv. p. a^a flcriTen, ii. p, 6U» 814. 

• West Looe case, p. 84. > Page 88. 
«MiveB«^U» p.814.. 

• Scri«iBv>8l8^> BhMriateae,; iv. p. 97a. 

« CMe of the borough of West Looe, p. 84, The sImikiHjr <tf this 
lnitkiitkii^.iB thssarespeets, to the coorto whkh aie proved hy the te- 
coidt>ef.Absndeea to^hsTB been held in IhetlMti^mtee than 4e0 7evi 
■go, and to the borou^ courts as described in the Leges BurgoniBi, is 
worthy of notice, and will be afterwards adverted ta 

' Pcriven, iL p ^78. 

• See p. 448. » Gloss, voce Mnjor. 



THE CONSTlTUnoN OF TOWNS. 435 

ed a mayor for that city in the first year of his reign ^ ; and 
the person so appointed is stated to have continued in office 
till the 8th year of John, who appointed another^. The 
latter king afterwards, in the lOlh year of his reign, gaye 
the citizens of London the right of choosing their own mayor'. 
In the second year of the reign of Richard I. during his ab- 
sence in the Holy Ltod, the cittsiens of Londdn obtained the 
grant of a community from the Earl of Mortain, the Arch-^ 
bishop of Rouen, and the other justices of the king \ 

According to Madox, th6 expressions commima or comr- 
nttmi/y, were not commonly, if at all, used in England be- 
fore the Conquest \ He thinks it probable, that, after that 
period, they passed into England from Normandy. These 
terms are to be found employed in reference to towns in the 
time of Henry If., when several examples occur of persons 
being fined for endeavouring 'to set up commuiuB in towns 
wtthout warrant ^. The expression^ as employed in these in- 
stances, may have meant either a general corporate body of 
the town, or perhaps some particular association or gild. 
But even at\er this period, the royal charters granted to 
towns did not contain express grants of communities, or other 
direct words of intorporation '' ; unless, indeed, a mercantile 
gild is held, as appears to have been done by Brady, to be 
the same with a community^; an opinion, however, which 
seems to be held by other writers to be ill-founded ', and will 
be afterwards considered. The charters are conceived mere- 
ly in the terms of grants of a variety of distinct privileges ; 
although it is not meant to be said, that, in point of lawj 
they may not have had the cfiect of incorporating the towns 

* Nicolson*8 £ng. HbU Library, Ed. 1714, p. 216. Bndy, p. 21. Sptl^ 
man, voce Miyor. 

* NicolsoD, jiipra. ' Coinjrn*8 Digest, voce Lan4mu 

* Bradj, p. 21. * ' P. 35. > Madox, p. 36. 

^ See the charters of Richard I. and John, quoted in Brady's Append 
dix, and those of Henry III. Madox, p. 28. 

« See Brady, p. 20. * Kidd, L p. 64, 66. 

E eS 



496 AN HISTORICAL INQUIRY CONCERNING 

to which they were conceded ; and this effect has been held 
to follow the grant of a mercantile ^Id ^ What other grants 
may have had this effect, may be left to English lawyers to 
determine. 

In the time of Henry VI. and Edward IV. we find the 
first ' examples of charters introducing the modem words of 
actual incorporation, and giving a certain name to the corpo- 
rate body ; and^ it may be observed, that the usual style of 
these is to constitute the burgesses and ma^strates, or the 
burgesses, inhabitants, and magistrates, as the corporate 
body'. 

It has been maintained, th^ the word community or com- 
monalty, as applied to a town, means a select body of the 
more respectable citizens, and not the body of freemen ai 
large ^. That, in some instances, it is to be found bearii^ 
this limited sense, unquestionably cannot be demed ^ ; but it 
may well be doubted whether this is the natural and proper 
meaning of the expressdon, or the constant sense in ^idi it 
is employed. The word community, in its oi-iginal import^ 
appears to express the abstract idea of a body consisting of 
many members ; and hence to limit it to the designation of 
any particular portion of this collective number, seems a per- 
version of its true import. Accordingly, we have se^n that the 
whole body of the burgesses in England were ori^nally erect- 
ed into the community or corporate body; and instances, where 

^ See case quoted, I. Kidd, p. 64. 

* See West Iiooe case, p. 23& Madox, p. 27. 

' Thus the charter of Henry VI. to Southampton^ grants, * quod yiUa 
* ilia de uno miyore duobus baUivis et buigensibus sit in perpetuum cor- 
^ porata, et suocessores sui nuyores, ballivi et burgenses villie ilUus sic 
^ corporatae, sint una communitaa perpetua corporata in re et nomine,' &c. 
Madox, p. 3a See also the examples of New Windsor and Wenlock, pi S9. 

« Ss» Brady, p. 23, e/posMm. Wight, p. 27. 

.\ flee, %xt instance, the act of Parliament relating to Plymouth, quot- 
ed barBrady, p. 24. In Pryn*8 Brer. ParL Bediviy. p. 32, it is stated, 
that commonalty has been sometimes so explained by committees of the 
House, wkere ewkm had tfesied the elective prwUege in teleet numben. 



/' 



THE CONSTITUTION OF TOWNS* 487 

His used in this extended sense, are furnished by Brady ^ him- 
self, although a zealous advocate for the more limited meaning. 
These instances are entitled to the greater weight, because 
they were deciaons of a committee of the House of Commons 
in the time of Charles I. of which Selden and Sir Edward 
Coke were members. In one of the questions, the point was, 

* whether a seled number, or the commonalkf, were to choose^ 
the representative of the burgh in parliament; and it was 
decided that the right of deetion was * in the commcmaity ;^ 
and the person who bad * the majority of voices of the com^ 

* jBOfioA^, and fourteen of the sekci number,^ was duly elect- 
ed. The other instances of the questions before this com- 
mittee were very similar ; and it b rather believed that Eng- 
lish lawyers in gen»al would not be satisfied with the mere 
assertion of Brady, that such men as those above named had 
mistaken the meaning of the word community ^ Perl^ps, 
however, no rule can be kud down which will be applicable 
to all cases. 

The^appellation of Milyor, after its introduction into Eng- 
land, always designated the ehiei magbtraf e of the city. That 
of Prsepositus appears to have been used in a similar sense, 
but is often found in the plural number. 

The designatbn of Ballivus^ is often used akmg with that 
of mayor, and when so used, of course denotes an inferior 

* P. eo, 61, 62. 

* In the case of West Looe, p. 116, it seemed nearly admitted on all 
hands, that Brady*8 limited interpretation was erroneous. 

> * GallishailllTus, vemaculehalllif etbaillie; abaUler tradere, commsl- 

* tere quasi commiflaaiius. Gnxe fim>Mf et /8«AAfiy,' Spelman, Ohm, The 
French baillif has, however, also been derived through the Jjatin ballivus, 
from biyulus, a porter or carried ; Diet. Etym. ie la Langue Fran, par 
Menage. This word b^ulus was applied to various offices under the Ro- 
man empire, and in Italy under the German empire t * Transfertur ba- 
' julus ad plures offidarios apud Italos ut baiUivus apud Gallos.* Spelman 
in verb. B^julus. < B^'ulus Grsecis recentioribus fi^t^Xf fixuntXpf tutor, 

* curator nutridus,* ib. Spelman states that the appellation Ballivus does 
not occur in England before the Conquest, applied to city magistrates. 



4S6 AN HIS'rOBICAL IKQUI&Y. CONCERNING 

BMigistrate. : The AppelkKiw of Akfatim»n } Niff Ap|4»d dAr. 
mg ti»^Staa9al^pmgd to;a.v8isbtyof dignfiedperaoos; and, 
MMM^otlm: meaui^ it.appaaf«y in imemtawSf lo.hftve beeo 
• ya u Mm oOK^ wMt Uie.ooiBcsir <arl *■ . Aax^ding toJs^pehnan^ 
theoflfiredf Jakfennaiiy as ai dtj/ magkUate, was notiiitiOi- 
daeed kilo. towjoa .before thb Nmnan pmod> and be doubts 
the authentioily. af «iie.«f the lavs.of Edward the GenfieflKir, 
in'whiohaldermeff'aw deJBcribad as ofBcen whhtt cUJes and 
bonbaghs .^j Madox ^ ha^oonjeotured that thej mce famif^t 
into town! from* gQd% the goteroors of which, as we dial| 
afterwards see, were designated by that appelktion. JnaiK 
dent times there were, in, some English towns, daatricts called 
aUennanries^ over eadi of wfaidi.the aldecinan preakied; 
and this is this cas& at' this day inLondon and aome •iher 
towDs^. . ' Anafakrman 4itthe present-day is usually one of 
the prindpal magistrates wnder Ae mayor, who is fraqoendj 
chosen from amongst them, as in London A In that city, the 
aldermen ware originally changed annually ; but by a charter 
ol the 88th year of Edward III. it was .prorided, that they 
should not be. changed* without oauae 7; and by statute JlTth 
Bichard IL c. 11, itwas enacted) that they should not be yeariy 
elected, but should renunn until removed for a reasonaUa 
cause. The office is now in general for life throufj^out the 
towns of England ^ 

We find the appellations capital burgess, capital dtiaen, 
and jurat, used more or less frequently in En^nd, in a sense 
similar to that of alderman^; although capital burgess is 
soiQetimes equivalent to commonTOoundlm^av J9lid sometimes 
indudes'the mayt>r^ aldermen, and oommon-ooundhneo '^. 

* Froin the Saxon etl^ior, senfar; Spelman. See his account of the va. 
nous aignifications of aldermen among the Saxons. Gloss, eo txxe, 

* *• Eorla or erle, vox Danica et ab illis (quibus olim emr et or honor) a<i 
' j]QB delata.* S|ielman. 

^ ' Gloss, voce Alderman. * Page 30. 

^ Kidd on Corporations, i. p. 322. « Kldd, ib. 

' Comyn's Digest. London, D. » Kidd, i. p. 323. 

» Kidd, i p. 323. >»Ibid. 



THE ec^NsrrruvioN of towns. 439 

Tbe asBemUjp, iMdkd idle conteioiMXNiiidl^ m al pfesent 
iNMiadlii^ IB Ae Ski^sh toimay beddeft mdudh^'die com- 
mtm^^mmcjiaHiDipnpaAy aa called, mtirily t u i n p K A endg also 
Ihe^nuqpar and-ilUkmeii ^ At one- time, however^ it ai^peirs 
tt^htLve btmiiiitai viewed mm dittiBct body^, tMbotti^ per- 
hiqfBy/eveft tlieii'it«««eetiiig» nuqr aot alvttys have been quite 
eaeluflreo^tb^otbev.nmlDk : It aecmrtd haVe been of kter 
ialmdiirtien tiiwt the other elEdal. nnk^ and was^ pabtsps^ 
».jCPO< dci ableMtinie lubeequently to the CSonquest, copied 
after uubrlMtkUtitMia in Fraiioe» Jfi^neinetanee^wehave 
wHffMT theitat anile ia toIw of an ag^mment, tfaat/aedeet 
bo^ abould, 'm^r{Mm0f exeBoae thoee elective rights ivhich 
wmce before .exoodiedl by<theibiii9a»e8 '• It has been maii^ 
taiied, .j^.gewraly.that^ whose <ibefofaart«r is siknt, ali the^ 
oQKpen^ion^.who aaseaable^ are calkdi the eonBDon^oouncil *. 
HEhe <ifiee of ooqnnoa^comidfanan i% in geaeial» for a year 
ooly^ 

WfitSmA a proviaaiiyvsoBieliBRSjomtained in the ^diarters 
U> tbeifingjUsh towna,' that f the pBopositi^ or the mayor^ sAer 
tbair^legtioft, shall beipntsented for admisHien to some of the 
royal officers, as the Jusdciacy,- or theTreasuier^ and Barons 
of Exdiegner ®. This provision was introduced as an ac- 
knowledgment of a certain dq;ree of dependence of the civic 
magistnite on the crown ; and we have seen that a flunikr 
rule was established in France* * It seems to hav« been held 
in En^and, that the mayor could not enter on his office till 
this form of presentation had taken place, and the oaths had 
been administered to him '^. 

> Kidd, L p. 884. 

* See, Hot instance, the Dover Case, Glanvil's Reports, p. 64-5, and the 
Ciiarter in the Appendlat to Biady, No. 89. 

> See th« Dover Case^ afterwards quoted, p. 440. 

^ Comyn's Digest, voL iv. p. 368. ^ Comjii, Ibid. 

* See the Cliarter of Henry III. to Gloucester, quoted p. 440, note ■ ; 
and that of Henry VL to London ; Brady's App. No. 11. 

'Maddoz, p. 50. 



440 AN HISTORICAL INQUIRY CONCERNING 

• 

The andeot charters of the kings, after the Conquest, 
throw no fiuther light on the mode of dectkm of the magis- 
tnites, granted by them, than what may, perhaps, be pre- 
sumed firom the circumstance that the right of dection is 
given by them/to the citizens generally ^ ; but whether theae 
grants took effect in all cases ft^ofly, and whethar -any cus- 
tom at that period uniyersaUy prevailed <^ choosing the ma- 
gistrates by a general poll of the burgesses, are perhaps points 
not completely determined. It is at all events certain, that 
m many towns elections, by some select bodies, came to be 
afiterwards introduced. The cnrigin of this method, in many 
instances, probably cannot now be determined ; long esta- 
blished custom being the foundation on which it often rests. 
In other instances it probably arose out of royal grsnto. We 
have an instance in the case of Dover, of the Commons 
voluntarily, at a meeting in the year 1561^ abandonii^ the 
right of election of parliamentary representatives and magis- 
trates, which they had previously exercised in a body, and 
^ vesting this right thenoefmward in a select number of thirty- 
seven, ehosen by, the mayor and jurates, and distinguished 
by the name of the common-oouncO *. 

'^See as to this rapro, p. 432. In a charter of Henry III. to Gloucester, 
Maddoz, p. 132, it is provided, ' Quod iidem burgenses nostii GlocesCr. 
' per commune consilium bui^ elegant duos de legalioribns et discretiori- 

* bus buigensibus Glocestiue, et pmentent iUos cajutali jnsliciario 
« nostro apud We8tm(onasteriuin), qui duo vel alter eonim bene et fide- 

* liter custodiant pneposituram burgi, et non amoveantur, quamddu se in 

* balliya sua bene gesserint, nisi per commune consilium buigL Yolumus 

* etiam quod in eodem burgo, |Mr eommune eontUmm burgentium Glocestiw, 
« elegantur quatuordelegalioribus et discretioribus burgi ad custodiendum 

* pladta corons, ftc. et ad videndum quod propositi illius buigi juste et 
' legitime tractent tarn pauperes quam divites.* These expressioos do 
not seem to refer to any select council ; and probably mean merely that 
these officers were to be chosen by the adviee and eaiumi of the burgesses. 
There seems no trace, in the early English charters, of a proper common 
council as a distfaict rank. 

* Ghinville's Be|X»rtB, p. 64. 



THE CONSTITUTION OF TOWNS. 441 

London probably presents the earliest example of the elec- 
tiTe privfleges being vested in select bodies, although, for 
some time, the mode of election does not appear to have been 
uniform. In the S9th year of Edward I, the mayor was 
diosen by the former mayor and aldermen ; and the sheriffs 
by the assent of twelve probi homines of each ward K In 
the IBOth of Edward III., the right of electing mayor and 
sheriffs was vested, by agreement, in the mayor, aldermen, 
and a select number of from twelve to six from each ward. 
A charter of Henry VI., proceeding on the narrative that 
the elections had been in use to be made by the mayor and 
aldermen, and the more respectable citizens specially summon- 
ed ; but that some persons, who had no right to be present, 
were then in the habit of mingling in such meetings, declared 
that, in future, the election of mayor should be only by the 
aldermen and more respectable citizens specially summoned, 
and debarring all others from being present*. In the 15th 
year of Edward IV., the masters, wardens, and liveries ' of 
the several companies were taken in ; by whom, and by the 
mayor, aldermen, and oommon-coundl, the elections of mayor 
and sheriffi were afterwards made ^. By the act 11th Geo. I. 
c. 18, the right of electing aldermen and common-council- 
men was vested in the freemen of each ward paying scot and 
lot^ ' 

In many burghs the right of electing the mayor, or other 
chief mtmicipal officer, is vested in the court leet, the gene- 
ral nature of which has been already explained. This pri- 

> Brady, p. 22. * Bndj*8 Append. No. 11. 

^ The liverjrmen of London, are a select body chosen out of the free- 
men of several of the companies, whose principal privil^j^e is that of form- 
ing some of the electoral assemblies of the corporation. See Sldtf, L p. 321 
and 329. 

* Brady, p. 23. 

^ The expression sooi and M^ in its original meaning, appears to have 
comprehended every charge and duty which fell on the inhabitants. See 
West Looe case, p. xxxiiL and Spelman, Gloss, in Verb. Scot. 



442 AN HISTORICAL. INaUIRY CONCBBNING 

vilcge is floraetimes vested in the jury oi the 'OaiMrt leet dbne ; 
whOst, at other tunes, the jury merely pnraent m wtiting the 
candidate who may have the vugority of voles, aod^ttve no 
coDtroul over the poll \ At .tUs ooart, abo^ the jiuyissme- 
tun^ presaitedperaonafbradittsmn tortheifm^domof the 

burgh, who were then sworn in ^ 

In England, from a very anciaat period, RW¥iri»finiw, of a 
mercimtile or mechanical nature, hi|,ve. been.distii^girfshed by 
the appellation of Gilds :■ and afterwardsyr those of the latter 
kind often got the names of Mesteres, mistereay aad. crafts. 

The word gild ' appears to have been appUedy among the 
Saxons, to societies of various descriptions. Thus the insti- 
'tutaon, called the friborga or tithing,, was called a gyMscipe 
or gildship, and its members gildones and .oangihiDiieB^. 
There existed aii;^>ngst tbet Saxons a variety of asaodatkins or 
gildsdpes, partaking of the nature of friendly or benefit socie- 
ties, and instituted for the various objects of lending pecimiaiy 
aid to those who requiredjt; of burying thedaMU andof sii^- 

^ Scriven, iL p. 805 and 843. In the ea«e alluded to, p. 842, that of the 
buigh of Hole m I>eiibigliahire, the poQ.elaetioii, by the biugesfes, was 
in yirtue of a byeJaw and continual custopk aSsce the aahtng of th^ ^^ 
down to 1819, when the practice was proved at the Shrewsbury Sunaoet 
Afldzes. See also Brady, p. 82, for the concern which the jury of the 
Court Baron has in choosing mayor, bailiffs, and bui^essea. The Court 
Baron ia another, manoxial tribunal, and is flometunes held in burghs. In 
the abstract of the municipal constitution of the JSnglish buqshs, given 
in Male's Election Law, numeroua instances will be seen of the elective 
rij^ts of Uie Court leet. 

• WestLooe Case^ p^.xlyii. isa, 164. 

» * Inde nomen, quod ei^ conjectia pecuniia jpdiditji impendio submi- 
•nistnitur, namjit wpradi^imiui^^tiri*^^,,,,,^ 

^vere^irilnsere. ^pehiwn, Cloaa. in Verb. (Mdum. Wort, of similar ini- 
port, such as gildonk, &c were used on the Continent from a veiy an- 
dent period (see SpdmanX and were of German origiaaL GUda and 
pld^ were used to some of the charU« g«ntod to tow^ 
the Netherhmds. See Pucange in verbw &id. 
* Spelman, in verb.,vGelduiiu 



TU£ CONSTITUTION OF TOWNS. 443 

ing 1088968 88 weQ for the living as for the dead ^ A pur- 
Uciilar asBociatioii, called the Cnig^teogild^, is loeodoned by 
Ifadox' 88 having existed befioce the Conquest, Jit seems 
uncertain whether it was of a rdigious or of a secular de- 
scripdon^ 

After the Conquest, a variety of relig^us gilds are found 
established in England, by royal charter,, as proper oorporate 
bodies^ Power was giventhpm by.tbe grants to choose cer- 
tain officers, sometimes an alderman and two Amgistri, some- 
times a magister only ^. InstituticMis, of a similar nature, ex^ 
isted in France, under the name of confindries ^. In £ngkuid 
tbey were abdisked at the Reformation^ 

The gilda mercatoria in England, is of very ancient date ; 
and, indeed, fnrnT t^ terms of a charter from Henry III. to 
the buigh of Wallingford, we might conclude that this as- 
BodatioQ had existed in that burgh belbre the Conquest ^. 

■ See Turner's Hist of the Anglo-Saxons, voL iv. p, 136. 

* The Gild of Cnigiits, * Knight, Saxon cnyt, puer minister fiimulus, 
( nee Oenoanls aliter hodie in ^isu ;* Spelman. 

'FageSS. 

« In Bal]lie*8 Antiquities of liOfedon and Westminster, p. 101, this gUd 
is said to have originated in the thne of Edgar or Canute, and to have 
been of a military nature ; but the account there given seems of a fitbu- 
loos descriptioa. 

^ Thus a charter of Hemy V., on the niorrative that the fraternity, or 
gOd of St George of Norwich, had been weU governed for more than thirty 
yean^ grants * quod pnedictflB fratemitas et gilda &atrum et sororum 

* pnedictorum et aliorum qui de eisdem fratemitate et gilda esse volu- 

* erint sint perpetuse et communitas perpetua temporibus successivis in 

* perpetttum,* Sec Maddox, Firm. Burg. p. 24. 

« Maddox, p. 34, 25. ^ Id. p. 20. • Id. 

' * Sdatis me dedisse et concessisse eis in perpetuum libertates et leges 

* suas omnes et consuetudines liene et honorifice sicut melius et honorabi- 
' lius eas habuerunt tempore EdwanH regit et tempore, &c. tcUicei gildam 

* mercatoriam cum ohinibus consuetudinibus et i^bus suis libere habe- 

* ant.* Brady, App. Na 4. Brady says in a note, that cowuehtdhtes means 
rents, and that the whole means no more than that the rents of houses in 
that burgh were not raised after the Conquest ; but the natural construc- 
tion of the passage seems to bci tliat the merchant 'gild was one of those prl- 



444 AN HISTORICAL INQUIRY CONCERNING 

In Domesday Book there is also mention made of a gibaila or 
gildhall which had existed in Dover \ a passage which mmjy 
periiaps, refer to the ezistenoe of a merchant-gild before the 
Norman invaaon. A charter of John' to Dunwicfa, granis a 
hanse ' and a mercantile gild, sictU habere coneueverini '. 

In the chart^ii soon after the Conquest, as those of Hen 
ry II. S and particuhurly of Jchn \ dauses very fiequently 
ooeur, granting a mercantile gild to the burgesdes or men ot 
the (own. 

The name of merchant gild would import, that it conasted 
of proper merchants, or buyers and sellers only ^ ; but there is 
reason to believe, that this disdnctive character was not always, 
if ever, entirely preserved in England. The merchant gild is 
sud by Maddox to be * a gild of merchants, tradesmen, and 
^ aHizans 7.'* In a case also decided, in the beginiting of the 

vWeg^s which had existed hi the time of the Confeflsor, and were now con- 
firmed. A nmihir construction may be seen in s charter of John to York ; 
Bnidy, Append. No. 21. 

^ See Hejwood on Buigh Elections, p. I/* 

' Hanse is nearly synonimous with ^Ida mercatoria. S ec Spdman, 
Gloss, in voce Ause, Auaen. 

^ Bradj, Append. No. 3 a. ** Maddox, p. 2?. 

^ Bnidj*s Append, patrim, 

^ The folfowing chiuse in the charter of Henry III. to Wallingibrd, is 
expressive of the mercantile nature of the merchant gild : ^ Prohibeo 

* etiam et pnecipio ne aliquod mercatiun sit in Craumena (a neighbour- 
< ing village), nee mercator aliquis nisi sit gilda mercatoria ;* Brady *8 
Append. No. 4. 

I We are informed by Sir Bdward Coke, that he had ' seen a charier, 
^ made by King Henry I. to the weavers of London, by which he grants 

* to them that they shall have giidan meroaiariam^ and a confirmation of U 

* made by Henry II. ;* a passage which, in this instance at least, seems to 
identify a craft with a merchant gild. Coke, as cited by Kydd, p. 63. We 
find, however, mention made in Maddox, Firma Buigi, p. 191 noie, of 
the gild of the weavers in a record of the time of Henry 11. ; and again 
(p. 203-4 notes) it is mentioned, in an Exchequer record of the time of 
Henry IV., that they had a gUd in the time of Henry I. which was con- 
firmed by Henry II. ; from which circumstances we may probably infer, 
that the gild alluded to by Sir B. Coke was truly an ordinary crafts gild. 



THE CONSTITUTION OF TOWNS. 445 

Uat oeoluryy a custom appears to have been established^ as cx- 
ksliog in the city of Winchester, that mechanics were not al^* 
lowed to exercise their trades within the town, unless they 
were members of the merchi^it gild K 

Id general, however, the merchant gild undoubtedly ap- 
pears to have been of a different nature from a mere craft or 
association of a particular mechanical trade ; and if it some- 
times or always included mechanics, as well as proper mer- 
chants, the former were probably not of any particular craft, 
but operatives in general, as seems to follow from the case 
of Winchester just mentioned. If, indieed, the merchant gild 
should be held, as has been done by some, to be identified 
with the corporation of the town itself, a point which will 
be immediately considered, it is not remarkable that it sh6uld 
also have included mechanics. 

The merchant ^Id was under the superintendance of one 
or more officers, who, judging from the analogy of the reli- 
^ous gilds, we may conclude were elected by the body it- 
self. When there^ was only one chief, he usually got the 
name of Alderman. Thus we find the alderman of the 
merchant gild of Oxford ' in the time of Edward II., and that 
of the merchant gild of York^ in the reign of Stephen. 

> Mayor, &c of Winchester o. Wilks. 2 Lord Rajrmond, 1129. 

s Monast. Anglican. voL ti. p. 141 . *• Bdwardus, &c. Nos autem conceflaia. 
^ nes, ftcnecnon donationes quas WilL de Cher, aldemuuinus de gilda 
' mercatorum Oxen, per chartam suam de conaenm et voluntate dvium 

* Oxenefordie de communi civitatis ct de gilda pnedicta fecit ecclesue (de 

* Oseneya).' 

' * Thomas de Everwick, &c. ut sit aldermannus in gilda mercatoria de 
' Everwick/ Maddox, Hist, of Excheq. p. 273. Maddox, Fir. Bur. p. 27, 
Identifies this ^Id of York with the commune or corporation of the town, 
without assigning any reason why that should be done in this instance 
more than in any other, and perhaps would conclude that the alderman 
here mentioned was one of the city aldermen ; but we shall afterwards see 
that this identification of merchants* gilds with the town corporation la 
questioned in England, and I therefore venture to r^^d this alderman 
of the York gild as having been, what he appears to have been in other 



446 AN HISTORICAL INQUIRY COKCBRNING 

Where there were more than one ofBcer, the principal was 
commonljrcaUed. aldsrmaii) and the others custodes or sca- 
bini, the last demgnalion being borrowed from the Continent 
Thus we fiiid a charter, in the time of Henry Vllt., granted 
by the alderman, ibur custodes or acabini, and the brethren 
of the merehant gild of Lenn in Norfolk ^ The alderman 
appears to have acted as the judge of the |^ld, and decided 
the dilutes of the merchants*. Thus in the charter <^ 
Henry III. to Wallingford, the king fbrlnds hb pr^spotUnM 
to meddle with the merchant gild, but to leave it to the al« 
derman and minister '. 

Some difierence of opinion has existed in En^and on the 
point, whether the merchant gild, as granted by the royal 
charters, is to be considered as the same with die community 
of the town. Spelman^ and Brady ^ r^ard them as the 
same ; and Maddox states, that they were sometimes identi- 
fied \ The circumstance alluded to by Spelman, that the 
town-halls are often called guild-halls, is certainly of consider- 
able, weight in this question. But in the case of Winchester, 
just quoted, the Court, although they inclined to the opi- 
nion that they were the same, and stated that thb rather 

caies, a peculiar officer of the gild, and not one^f the ordinafj au^iilnitef 
of the town. 

A < Sdant presentes et futuri, quod noa Richardus Bowghere, aJdermmn- 
' nua, EdwazduB Baker, Joh. Broune, Boh. Sime, and VTSL Hall, draper, 
< custodes slve scablni, et fhitres fratemiutis sive Gflde Meitatorls Sane- 
^ tae Trinitatis yillie Lcnn Epiacopi in Com. Norff.* Sun Spehnan o. ScabinL 

* In Brady, p« 20, we have this passage: ' Aldermannua gildse mer. 
^ catonim Oxnnie, Judex gilds Ozoniensis, qui mercatorum lites dyu- 

* dicabat |* and reference is made to Monast. Ang. torn. U. JfiiL 141. But 
all that is there to be found, is the passage abeady quoted, p^ 44ft, note S. 

' See Brady^R Appendix. 

* * CHldanim nomine continentnr Hon solum, ndnores fratendtates et 

* sodafitia, sed ipse etiam civltatum communitates. Inde hodie Qlanim 

* pnetoria, puhlicique concessus tedes gildhaUas vocant, id est gildse au- 

* tas.* OloSi in verb. Geldum. 

* Page SO. « Firma Burg. p. 27- 



THE CONSTITUTION OF TOWNS. 447 

seemed the import of the evidence, held the matter to he suf-* 
fidently doubtful to refuse action to the mayor and others of 
the inoorpbration of Winchester, to enforce the privileges of 
the gild K Mr Kydd has given it aa his opinion, that the 
merchant 'gild is distinct from the general corporation of 
the town ', relying chiefly on 'diis case of Winchester; 

In farther eorroboration of this opinion it may be stated, 
that the alderman, or other ofiicers of the merchant gUd, do 
not appear to have enjoyed the chief magistracy in the town; 
Thus in the charter, granted by Henry lit. to Waliingford, 
we find mention made both of the preepositus of the town, and 
of the aldennan who presided over the gild. Indeed the 
chief officer cf a merchant gild, and, as we diall immediately 
see, of a trades^ gild also^ seems almost invariably to have got 
the title of alderman, whereas in the proper town corpora'> 
tion, that denomination generally belonged to a secondary 
magistrate. 

Another drcum6tanee,'wfaich' tends to show a distinction be^ 
tween the merchant gild and the community of the town, is, 
that the former does not appear to have necessarily induded all 
the dtixens or burgesses. Thus, in a charter of Richard I. to 
Winchester, the privileges are granted, ^civtbus nostris Win- 
< toniae de gilda mercatdria * ;* and in a charter to another 
town, certain privileges are given to its citizens, as the * bur- 
^ genses Wintonise qui sunt de gilda mercatoria^ enjoy them ^. 
In a charter of Henry III. to Gloucester^, some of the pri- 
vil^es ore given to the burgesses generally and others ^ Bur- 
* genabus nostris Olocestris de gilda mercatoria V It is 
therefore plains that the merchant ^d did not necessarily in* 
dude all the burgesses ; whereas we have seeuy that the com- 

* See the Opinioiis of the Judges, m given t Lord Baymimd 1120. 

* VoL L p. 64. « Bndy, Append. No. 19. « lb. No. & 
» lisddaz, p. laS. 

* See also p. 446, note % where a distinction seems made between the 
dvetf de eo mm uni and those dt gilda. Mere, Otunf 



448 AN HISTORICAL INQUIRY CONCERNING 

iDunity or coqx>mte body waa, by the ancient charters, made 
to consist of the bui^esses in general. 

There is, however, one instance, where it appears, from a 
charter of James II. to New Windsor ^,^that the common 
council of the town was completely identified with a select 
number of twenty-eight or thirty, <»lled in the grant the guild- 
brethren, or * fratres guild-hall i" and the other magistrates of 
the town, consisting of ten aldermen or chief benchers, two 
bailiff and a mayor, were appcnnted to be chosen out of these 
guild-brethren. 

Associations of the mechanics of particular trades, although 
probably not so andent in England as the merchant gild, ex- 
isted at a very remote period. They appear to be at least 
as old as the time of Henry I., in whose time the weavers of 
London seem to have existed as a society ' ; and in the reign 
of Henry II. we find mention n^ade of the weavers* gild, and 
also of that of bakersof London ^. The weavers had gilds in a 
variety of other towns at remote periods, as in Oxford, Y(Nrk, 
Nottingham, Huntingdon, and Winchester^. These bodies 
were also called misteres, mysteries, and crafts ^. These mys- 
teries were, however, not confined to proper mechamcs, as we 
find mention made of the mistery or gild of haberdashers in 
the time of Henry VIII. and Philip and Mary \ 

These societies were under the direction of officers, who 
bore various denominations. In a document, which Maddox 
conjectures to be of the reign of Henry IL, Richard I., or 
John, there is mention made of the alderman, chapUdn, edie- 
vins, and other members of the gild of saddlers of London ^. 
In the time of Edward the Fourth, the pewterers of London 

^ Brady's Appendix, No. 29- 

* See what has been already stated as to their gild, p. 444, note ^ 

' Maddox, Firm. Burg. p. 191. * Maddox, p. 28. 

« Maddox, p. 33, 34. « Ibid. 

' N. Aldennanno, N. Capellano, N. qiiatuor Schivinls et omnibus seni- 
oribiis glldie sellariorum amicis et confratribus suis salutes et oratloneB 
in Christo. Firm. Burg. p. 27. 



THE CONSTITUTION OF TOWNS. 449 

were governed by a master ^ ; and the haberdashers^ gild of 
IxmdoD, in the reign of Philip and Mary, by a master and 
four wardens '. 

There are varioas examples, in the records of Exchequer, 
of fines imposed for unauthorised gilds ^. From the ezpres- 
nons used in these records of adulterine gilds, and gilds with- 
out warrant, we may infer that these associations could not 
r^ularly be set up, without the royal authority. The mere 
circumstance of imposing a fine was, perhaps, no very satis- 
&ctory evidence .of illegality, because we know that the Nor- 
man kings took this mode of filling their treasury on every 
occasion ^ 

' Magister liberorum hominum mistene de peuterers. lb. p. 33. 
' Magister et quatuor gardiani gilds sive flratemitatis SancUe Katerinse 
artis de marchant haberdashers civitatia de London. Fin Buig. p. 34« 

* Maddox, Hist. Exdiequer, p. 390. 

* See Hume's Hist. Eng. App. 2. 



Ff 



4^50 AN HtS*r6RlbAL jfNQCriRr CON-CERNING 



CHAPTER III. 

AlflFrOBlCAt VIEW O^ TBE AKCTKXT COKBITIOK, AND Ol^ 
THE MUKICIPAL CONSTITUTIOK, OF THE BUBGHS 

OF 8COTC.AND. 

As a great part of the knowledge which we at present 
possess, regarding the ancient constitution and customs c^ the 
burghs of Scotland, is derived from the collections known un- 
der the titles of Leges Burgorum, Statuta Gikhe, and Iter Ca^ 
merarii, it becomes proper, before entering into any inquiry 
^r^arding the condition of those burghs, to submit some ob- 
servations with respect to the authority of those collections ; 
and, first, with respect to the Leges Burgorum. 

There exist a variety of ancient manuscripts, containing, 
amcHigst other matters, a series of laws or customs, varying in 
its extent, and principally relating to the buxghs of Soot- 
land. This series is now known under the name of the L^^ 
Burgorum. The more modem of these manuscripts, but not 
the more ancient, contain also that compilation called Re- 
giam Majestatem, which has been the subject of so much 
critical and antiquarian controversy. The authority of this 
latter compilation, however, does not concern our presoit 
subject ; and it may be mentioned, that the question as to 
the authenticity of the Leges Burgc»*um, as a collection of 
Scottish laws or customs, is altogether independent of that 
regarding the authority of Regiam Majestatem. 

The precise dates of those manuscripts are unknown ; but 
the most ancient is thought to be as cdd as about the middle 
of the thirteenth centiuy, and several of them appear to be 
of different dates in the course of the fifteenth century ^ 

> The most andent is now admitted to be that which was long preaenred 
in the library at Berne in Switzeiland, having been purchased in Eagiand 



THE CONSTITUTION OF TOWNS. 451 

It cannot now be determined from what precise sources 
Skene published that series of the Leges Bui^gorum, which 
nmkes a part of the collection of ancient laws, published by 
hiniy and now usually known by the general title of Regiam 
Majtstatem^ This series contains a greater number of 
borough laws than any of the more ancient manuscripts ^ ; 
Imt, in so far as some of these manuscripts go^ it corresponds 
with them, although not with perfect accuracy. 

These borough laws have sometimes been considered as the 
enactments of David I. ^ ; but there can be no doubt, that, 
in so lar as respects the whole series of these laws, as pub- 
lished by Skene, this view is incorrect \ and there is, perhaps, 

in the time of CromweU, and which has since, with the utmost liberalitj, 
hecn graluitoualy transferred to this countr j. It contains a copy of the 
English compilation of Glanville in the reign of Henry II., and various 
other English collections. It then contains a collection of ' Leges Scotise,' 
corresponding to a considerable extent with certain of the laws contained 
in Begfarm Majestatem ; but it does not contain this latter compilation. 
It coaipidMnds, lastly, a aeries of borough laws, extending to fifty-ibur ; 
but tlieie can be no doubt tliat it once contained a greater number, as 
some leaves are awanting. See a fuller account of this manuscript in Chal- 
mer^s Caledonia i, p. 729. Mr Thomson, by whose kindness I was ftvour« 
cd wHh a view of this curious and instructive manuKript, coi\jcctufes, finom 
internal evidence, that it waa written in the veign of Henry III. The 
monascript,. regarded by Mr Thomaofn< as claiming the next place in point 
of antiquity, is one which has been very recently brought into notice, or 
diaeoveMd, in the town of Ayr. It contains the Statuta GildsB, and a se- 
xte of aiMrot 106 leges .butgorum. It does not contain Begiam Mi^festa- 
tem. Hie maatiacript presented to the Advocasea*. Library by the Earl 
of Cnmagrty eontaina a aefles of 116 of the borough laws, but they end 
abnptly* See a fbller account of this manuscript in Ijoxd Hailes exami- 
natioB of the arguments for the authentadty of Regiam M^jeatatem, p. 4. 
si aajb It ia peobably not of a much older date than the middle of the 
Meentlreentuiy. Miny other manuscripta of that century exist, con- 
fthe Leges Bafvorunib Skene's published colkctiea eentains 145 
JawB. 

' See his Introductory Address to the reader. 

' See aotei, ^ttpm, p« 450« 

* SmUnei, book i tit. i. sect 96. See also Wi^ p. 30. 

^ It has been aliwdy stated, that the whole of this aeriea is not contain- 
ed in the more ancient manuscripts; and some of them, as c. 135, them* 
nelTee bear a much more recent date. 

Ff 2 



452 AN HISTORICAL INQUIRY CONCERNING 

« 

no sufficient authority for such a conclusion, even with re- 
spect to the whcie series in the more ancient manuscripta. 
The usual title of them in the older manuscripts is, * Leges 
^ et Consuetudines quatuor Burgorum, Edinburgh, Bockes- 
* burgh, Berwic, Strivelin, constitute per dominimi David, rer 
*. gem Sootise^,^ — a title which, although ambiguous, may 
mean that they were the enactments of David, and wane ob- 
served or enforced in the Court of the Four Boroughs, which 
was, at an early period, constituted by delegates from these 
four towns. But, perhaps, little faith is to be given to any 
such titles, as they may be merely the production of perscns 
contemporary with the manuscripts. That some particular 
laws of this collection, however, were the enactments of that 
monarch, who, we know, did enact laws', or, at least, con- 
tain the substance of some of his statutes, is .very probable. 
Thus, a charter of William the Lyon to the borough of In- 
verness, makes mention of one or two borough laws ^lacted 
by his grandfather David, and, at least, one of these enact- 
ments, or a law in substance the same, can now be found in 
the Leges Burgorum'. 

^ This is the title of the Leges Buigorum in the Bern manuKfipl, Cale- 
donia, i p. 78* That of the Cromartj mantucript is similar. 

* See Hailes on Regiam Miyestatem, p. 11, and what ftUowa in the 
text. 

' William, in his charter, commands * ut nuUua infi» balliam de laTcr- 
«nen&dat extra buiKdm meum, panhum tinotmn rel tonaum contra 

* offiMHi Dtnidii et meam.' The 28d chapter of the Legea Bingomm is 
in these tenns : ^ Nullus nisi bui^genais potest cmcre laoam ad tingen* 
^ dum nee faeere pannum ; nee pannum aecare nee in huzgo nee eztia 

* buigum ; aecus est si habeat lanam de propriis ovibus.* The charter al* 
so has tUa prohibition, ^ Prohibe<> etiam firmiter, nequia emat vel ▼cndat 

* extra buigum meum^ aliquod quod ait contra aaaiaam regis Davidis &▼! 
*' mei, et meam.* It is possible that some such law aa the fiOowing maj 
be here alluded to : ^ Nullus mercator extraneus vel alienus potest cmefv 

* lanam aut coria aut alia merdmonia seu mercantiaBy extxm buigam nee 
' infira, nisi emerit a buigense.* I.eg. Bui^., c 18. See also atat* OuL 
c. 37. This charter certainly shews that David I. did enact borough laws ; 
and reference may also be made to a passage, inserted in Foidun, UK ▼• 



THE CONSTITUTION OF TOWNS. 4^8 

But whether a oonaderable portioD of the borough laws, 
which we now have, be truly the enactments of David I. or 
not, there is no doubt that there existed, at a very ancient 
period, and, in all probability, as early as the twdfth cen- 
tury^ certain laws peculiarly framed by some authority or 
other for the regulation of borough polity ^ ; and we have 
every reason to believe, that the earlier part of the collection 
we now have consists of those ancient laws. Indeed, if the 
oldest manuscript we noiv possess, containing this collection, 
is of as early a date as is supposed by those best qualified to 
judge of such matters ', it becomes certain that a large pro^ 
portion of our present collection is of at least as ancient a 
date as the thirteenth century. 

Arguments may also be drawn, from internal evidence, 
both in favour of the antiquity of many of these laws, and 
also in proof that they really were, at one period, acted on 
in the boroughs of Scotland. Probably the most remarkable 
evidence of this nature respects those laws regulating the sale 
of heritable property within borough. 

c. 48, and attributed to Aldred or Baldred, a contemporary of David, 
in which a particular monastery is said to have been founded by David, 

* ut patet m ptokgo tju$ nip^r itolttlw burporumJ* Lord Hailes, after ex- 
preaslng hb doubts as to the authenticity of fiegSam Miyestatem, proceeds 
thus ; * There is sinless doubt, that most of the statutes In tiie collection 

* called L. L. Buigorum, were enacted, or at least enforced, during the 

* reign of David I.' Annals, voL i. p. 104. ed. 1819. 

' In a diarter of William the Lyon to Glasgow, mention is made of the 
*• asslsaburgnrum meorum,* in evident aUusion, not to a particular law, but 
to a code. See the Charter, Oibson*8 History of Glasgow, p. 301. In 
the list of articles, which, in the year 1392, in the time of Edward I, were 
transferred from Edinbuigh Castle to Roxburgh Castle, and delivered te 
Almrandfr BalUol, Camer. Scotise, for John Balliol, king of Scots, one 
item was as follows : * In uno saccule continentur 46 rotuU magni et parvi 

* quorum quidam sunt de debltis, que debebantur domino regi, et duo de 

* legibus et asrisis regni Scotise, et de hj^ibus et eonaieiudhiibia burfforum Soo- 
-* Hm^ et de qulbusdam statutis editis per reges Scotie.' Robertson*s In- 
dex. Introduction, p. xvi . 

* See note, aupra, p. 4(M). 



*54 AN HIgTOMCAL -INQUIRY COXCEBSNING 

Sj aiav or custom of the boroagfasy at an early period, 
so peraon ooidd «eU -property within borough, or «l least^audi 
$B heihad obtained by inheritance, unless >he had tint made 
an offir.of it ^at three head courts, to his .heirs ormear^nla^ 
tions. nhiB i^e is laid (down in a .great. many ipasnges^af 
theljegeB Burgorum ^ ; and that it ^wba frequently aeted'.on 
in 'pntfitice, in die thirteenth century, is pnyvad by many 
deeds of sale of borough prop^ ty, preserved in . various of 
the- mfsiastio diaitukries ',— a oiroumstanoe which iippeidrs of 
very eonsideiaUe importance, in shewing that many of those 
laws and cufttoms reoorded in the Leges iBurgocum, which 
are entirely obsolete, were, nevertheless, at one period, ge* 
nuine parts of the system of borough jurisprudence. 

Another provision of the Leges Burgorum is, that aasine 
should be delivered in presence of the provx)st and twdve 
buigesses^ That this rule was also acted upoKi. about '.the 
same period, is proved 'by eeveral deeds ^ 

A remarieable eoincidenee is also to be observed bdw^en 
those passages of the borough laws, regardingtthe head;00urt8^ 
and the customs in relation to those courts, which, we know, 
from authentic evidence, were observed in various borough 

^ ^ QuUibet pot«8l dare in sua kgiUina potMtate tecnua suam jquam 
^ babet jde oonquieitu suo cuicuaqua yolueiit. Sed a^t neoaaritate oom- 
* pulsus, ita quod ipaam hsereditatem vendere opocteat ; tunc c^bent U- 
c lam ad tria placita capitalia auis prozimis beredibus <iff«rreb*«<.l4i|ges 
Bttigor., c 45. 

^ Qui probabunt, quod, terra ilia in tribus placitis capiti^ibiu,. pnviD- 
^ quionbus anicia et parentibus Tenditoria pex ipaum oblata fuit.'-..C 187, 
aect.3. See also c 94, 96, 06, 116. 

• See jthe Deeds of Sale in the Appendix, No. 19, and.JM). .Jte.^dbo 
a Deed of Sale in 1268, from Chartularjr of < Glaigow, yoL i. p. 444y in 

. Gib8on*8 History of Gla^w, p. 303 ; and another deed, Kennedy's An^ 
aids, of Aberdeen, i. p. 31, Note^ 

' * Secuttdo quod intrana habuit aaainam sypia solum coram pnodictis 
*> duodedm hooAintbus et psseposito ; et quod dedit uaum deqarium pro in- 
*• troitu,* c 197, aect. 3. 

* See Appendix, No. 20> and the Deed, Oibaon's 6hugow,.p. d03. 



XHE CONjSTlTUJION OF.^OWNS, ^455 

We.fibaUJuiYe occaaipn^.aftQiiivrar^s, (o see ^piple ^vidpaceon 
this 3ubj^t \ 

From all that has be«n qaid, we certoinly are prepare^ to 
oome to the conclusion, that, whatever may be the re^ spuifces 
from which the burgh laws were <Higtnally derived, and what* 
ever may be the precise date at which they were first intro- 
duced, a very high antiquity may. at all events be claimed for 
a large proportion of them, and they may be legitimately used 
fpr illustrating the ancient constitution and general internal 
polity of the burghs of Scotland. An ancient body of laws, 
although the evidence of its origioal authority mfiy be doubt- 
ful, yet. if it is proved, to a considerable extent, to have been 
acted on in practipe, may come to be of great importance as 
evidence of consuetudinary law, even in those cases where 
other proof of that consuetude is awantMig, and ni$y thus ac- 
quire a degree of authmty of which it was not originally 



The SiaMa GiUm^ in the ancient manuscripts containing 
them, fxofess to have been framed in the town of Berwick, 
in the latter part of the thirteenth century, by R. de Benu 
ham *, may<Hr of that town, and by other burgesses belonging 
to it There seems every reason to believe that this state- 
ment is a true account. The statutes of the gUd are, from 
their whole tenor, evidently the regulaUons of a particular 
town ; and it is a circumstance worthy of attention on this 
point, that, throughout them, the chief magistrate of the town 
is denominated mq/or or mayor, an appellation wlii^ appears 
seldom or never to have been applied to the chief governor of 

' See infn. na to the head courts, and the ancient mode of election with- 
in borough. A curious coincidence may also be observed between the 
i04tb chapter, relative to contempt of the magistrates, and a trial for that 
offence in the records of Aberdeen. See the trial, Kennedy's Annals of 
Aberdeen, voL iL p. 473. 

' This name is written A. de Duromhey in Skene's Collection, which ap. 
pears to have been an error. The Ayr MS. has the name in the text. 



456 AN HISTORICAL INQUIBY CONCEBNING 

any other town of Scotland K. But what constitutes stiU strang- 
er evidence of the authenticity of those laws, as the r^uladons 
of the town of Berwick, is, that there is sufficient proof that 
there really ctid exist, about the nuddle of the thirteenth oen- 
tury, a mayor of Berwick, bearing the name of R. de Bern- 
ham, who, there is reason to believe, is the individual by 
whom, in conjunction with others, those laws bear to have 
been framed '. 

From die circumstances of these statutes being found fre- 
quently in the same collections with the Leges Buigorum, and 
other andent laws, there can be little doubt, that, although 
the enactments of » particular town, they wer^ used as a part 
of the general system of our old laws, and were probaUy ob- 
served in other towns. They may therefore be properly used 
in iUustiation of the ancient borough customs. 

Little or nothing is known as to the (nrigin of the Iter Came- 
rariL It occurs in ancient manuscripts ; and there can be lit- 
tle doubt that it may be used in the way of illustration. The 

^ In the chartukry of Cambtukeneth, foL ft9^ there is « deed in ISM, 
in which Joannes de Londoniis, mttftr of this town, and finir othen bil« 
livi, are mentioned.— See also next note. 

* In the char^ular^ of Coldi^gham, (p. SS. Macfarlane), there is the fol- 
lowing precept : ^ Alexander, Dei gratia, Rex Scotorum, R. de Beniham, 

* mi^ori et prepositis suis de Berwic, salutem. Mandamus roMs et preci* 

* pimus quatenus eitraneos mercatores qui veniant tisq. priontum de 
^ Coldingham ad lanam et alias mexcatuias prions et iconven^ de CoUU 
' jngham emendas nuUo modo impediatis, quin dictas mercatuns emere et 

* abducere possunt, salvis nobis antiquis consuetudinibus nostris* TesUhus 

* Patrido Comite de Dunbar et Walteio Olifr. Justk. Laodon. apud Edln* 
i burc, xiL die April anno regni Domini &^s viocnmo quarta* This 
Walter Olifard was Justiciary of I^othian, firom 18S1, to 184S, dunog the 
reign of Alexander II., (Caledonia, voL i. p. 704.) ; and the 24th rear of the 
reign of ^hat king was 1239, which is therefore the date of this deed. In 
the Ayr MS. the date of 1281 is affixed to one of the gild-kws ; another 
bears date 1284. The first laws in the series have no date attached to 
them, and may tberofore possibly have been somewhat older. Hence there 
is nothing improbable in eupiiosing that the R. de Bemhara, mentioned in 
this precept, may have been the individual who published the whole, or at 
least the earlier, of those laws. 



THE CONSTITUTION OF TOWNS. 457 

Utility of any ancient body of laws, in this point of view, may 
be, to a great extent, independent of their original authority. 

Having thus premised a short account of the soimses of 
ni|uch of our information as to the ancient condition of the 
Scottish boroughs, we shall proceed with our inquiry into the 
general history and municipal constitution of these towns. 

The early history of the towns of Scotland is involved in 
that general obscurity which so largely envelopes the ancient 
annals of North Britain. Little appears to be known with re- 
elect to those towns, previous to the twelfth century. 

About that period, we find that many of them had already 
acquired the appellation of burgi or burghs ^. In the char- 
ter of foundation, in the reign of Alexander I., by Earl Da- 
vid, afterwards David I., of the monastery of Selkirk, after- 
wards removed to Kelso, the appellation of burgus is applied 
to Berwick and to Roxburgh*. The different burghs or 
towns were, as early as this century, the property either of the 
sovereign, or of nobles and barons, or of the ecclesiastical or- 
ders. This we learn from the Leges Burgorum ^ ; and we find 
ample proof of it from other sources. 

In the reign of David I. we find, in different charters of 
that monarch, the appellation of < metis burgus* applied to a 

' The word burff has given rise to mucli etymological discuaBioiL The 
Latin word burgm^ although not used by the more dasac authors, is found 
in Yegetiua, who wrote nearly 400 years after the Christian era, and has 
been derived from the Greek vvpyos^ htrris* In this view of its derivation, 
imffUB would signify, in its original meaning, a fortified town. Burg has also 
been derived from the Saxon bearffan, in tutum redpere servare.-»See 
Brady, jk 2. Or from beorgy a rock, Hailes* Annals, vol. L p. 112. Burff 
has fbrtber been said to be a pure German word, signifying the placing or 
situation of many houses together.— JSee Brady, p. 1. 

* Chartulary of Kelso, p. 7- Macfar. A copy of this charter is in Dal. 
ryn. Hist. Col. p. 40& 

' *• Buigensis domini regis potest luibere duellum de burgensibus Ab- 
> batis Comitis Prioris vel Baroni et non e converso.* Leg. Burg. c. 15b 



458 AX HJJITX)RJCAL I^'QUIItY ,qQKC^R,NING 

y^l^^jF 9i U^wj^ ^T))^8{}]e gffiuted to the monks of Dunfi^nn* 
}\^^\by,Q^iA^.i a tftft in fiis buTfih of Haddington ^ ; and, 
by another, a ^ mansura," in each of his burghs of Dunfermline^ 
Stirl^ig, JPeiith, i^nd ^Eduibq^gh ^ We find the same ex[«es- 
9fpn jigplfed to tl^e^ and other towns by t^e. succeeding mo- 
)iarQ))8. Thuis ^filc^jia IV- bestow^ a toft in his burgh of 
Rut}j^l^}en,^Qa,t)^^ mp^ksof Xelso^ In }ike manner, William 
the Lipa.granted IpO.merks out of the.ferro of JUs bur£^ of 
)54i|fl^rgh, to the^Ubey of Dumfermline % and a toft in JUs 

' * David, "Rex Scotorum, episcopis, abbatibus, comitibus, baronibua, rU 
cecomitib^a, prepositis, miniatris, et omnibua probis hominibua totiua fxx" 
ro.Que aaluiein : JSpi^tia^ipe p^ astute anime n^ee et anteoenoruni meo- 
rum ab^ti de Dunjfeimliny et fratribua ibidem deo servientabua, unum 
pleoaxiiUD toftum in bux^ meo de Hadingtun dediase, libere et quiete, 
ab omne consuetudine et servitio, acut predictua abbaa tenet aliquod 
toftum melius et liberiua per bui^ga mea. Teatibus Gregorio epiacopo de 
Duw^ld, «t Qattero cancsUaiio, et DuncaAo comite, et Thgro. vicecfipBi- 
te Alfwyno apud-fdenltMig.' Chart. Dunf(ppn. foL yib. 

^ ^ David, Dei gratia, Rex Scotorum, Roberto electo Sancti Andiee, et 
omnibus comitibua et baronibua, et omnibus fidelibus suissalutem. Scia- 
tia me conceaaisse et dedisse in perpetuum in elemoalna pro anima patria 
et matria mee, et fratnuu et anteceaaorum meomm, ecderie Sancti TH- 
nitatia de Dunfenn. omnem. depi^iatioiiem de oqmibua dominya mela de 
Dunfenn^ niai de^ iUia que ad aliaa eccleaiaa pertinent, et unam manau^ 
ram in burgo meo de Dunferm. liberam et quietam, et aliam in bwgo 
meo in Strivelin, et aliam in burgo meo de Perth, et aliam in burgo meo 
de Edenburg. Testibua Roberto electo Sancti Andree, et Herberto can- 
celL apud Dunferm.' Chaft. Dunferm. foL vii ^ 

' ' Malcolmua, Rex Scotorum, -dapi&ro suo et vicecomiti de Cludesdale* 
et omnibus aliis probia hominibua suis todus terre sue salutem. Sdatia 
me, in perpetuam elemoslnam dedisse Deo et Sancte Marie de Kalchou 
et Monachia ibid.*Deo servientibua, et in poaterum servituria, unum toC- 
tum in burgo meo de Rutherglen plenarium tenendum ita libere etquie- 
te sicut ipsl aliquod toftum in aliquo aliorum burgorum meorum liberiua 
et quiecius tenent. His testibua.* Chart Kelso, p. 25. Macfiur. 

4 ( Willfis, Rex Scotorum, eplMopis, abbatibus, comitibus, baronibua, 
justidariis, vicecondtibus, prepositia, miniatris, ceteriaq* probia homini* 
bus auis univer^ salutem. Sdant clerici et laid preaentes et poster! me 
in liberam elemonnam conceaasse et confirmasse Deo et ecdeaie Sancte 
Tiinitatis de Dunferm. et monachis ibidem Deo servientibus, diviaam il* 



TH£ CONSTITUTiOiK OF TOWHS. 4fi8 

• 

iiifgs/bjyf iM«ntroK, to lUbertide.LttfidciQiis, desigoiedtiuBAMa 
iDitbe.de^ ^ It may^be obMrs^adr bwprevery .thatihiadnade 
of esptrMSon waftootinvariahly used, m we : cHmwonriiy * find 
ihe jim|)fo eoLpnei8iaiiof.iu9]f \iq)plkd.to< aoBie of ^eaeXamnB. 

The^m^ereigns, during this period, not oaly eacaNMedtthe 
4giit of) guriBg eburtera of < pfurtipidar ^tenemaEito, jvithuiiilieir 
bturg^ to rd^;MHi9,hQU8es, and to individiiab ; . butuibo be- 
stowed on the nobles and dignified clargy^ entire tqwns^ which 
bad previously been royal/ po8sessicins,-*-a:fact virhiffbioay shew 
that the. expression, of meus burgus was not a mere unmean- 
iilg title. 

.Thus, in 'the mtwificent .grant .made by David to the stew- 
ard of'Scotland, Walter, the aon^ of Allan, and oonfirmed by 
Mafcokn IV. S < Benfrew' was .included ; and akhoi^ this 
grant . undoubtedly cofliprehended the district -or .barony of 

'* kan-qwMfrBez Miileolinu8-fnter<iiieu9 eidem ecelesie feci^C. redditum 
*kM aolidtfnim habendum «bl ringoliB annis de flrma bui^ mei de Eden- 

* buig quoiuq. etuidem redditum prefiite eocksie reddendum aliunde cdn- 

* flUtuam. Pneterea concedo eidem eodesie pro anima fiatris mei zx. acras 
*■ terre^ et unum teftum in Dunferm. tiberas et quieias aicuti ceteraa pos- 

* K mk imtM auM liberius et quietius tenet, quas Waltenirfilius Alani, dapU 
^'ler -neua prefiile eedesie dedit ea die qua Bex Malcomus firater meus 

* ibftdcm wpultus Mt Testibus Andrea epiieopo de Katen^Matho ardii- 
' 4iae. • Ricaida capeliano, Waltero filio Alani David Olilbfd., PUUippo de 
''▼allon,Benaido'filioBriani, Waltero de Berkelai, et Bobert&Berkelai, 
*' Roberto ilik» Saul, apud Kingoni.* Chart Dutt£ foL iiii. 

> * Willelmufl, Dei gratia, Bex Scolorum. Omnibus probis hominibus 
' todus terre sue cleridB et laids, salutem. Sciant presentes et futuri me 

* dedisaeet ceaeesBisiie, et hac carta mea confirmasse, Boberto de London 
^<ttlo-meo, unum j^enarium teftum In burgo meo de Munros, sciL iUud 
*" toftum quod est inter toftum Alexandria vicecomitis de Strirelyn, et tof- 
^ turn Jocelini hostiary mei, tenend. in liberum buigagium de me et he- 

* redibus meiB in feodo et hereditate, ita libere et quiete plenarie et hono- 
' rifice, sicut aliquis baronum meorum, aliquod toftum in aliquo buigorum 

* meorum quiecius, plenlus et honorificentiu^ tenent. Test. H. cancellario 
'meo. Comite David iratre mea Will de Moravill ConsUbL Alan filio 

* WaK teri dapiferL Adam Syreis. Geoig. de Mortimar. apud Munroe.* 
Chart. Arbroath, foL viii b. 

* See the charter of confirmation bj Malcolm, in Steward's Genealogi. 
cal History of the Stewarts, p. 4. 



4M AN HISTORICAL INQUIRY CONCERNING 

Baiiiew ; yet it is probable that the town of Renfrew exist- 
ed wiien the gnnt was originally made by David, and was 
included in the gift; for we find the steward; eatly in the fol- 
lowing reign, bestowing a toft, in his burgh of Renfrew, on 
the monks of Dumfermline K The charter of Makcdm also 
bestowed on this illustrious progmitor of a long line of longs, 
a liberal portion of land in every royal burgh in the king- 
dom, as a place of residence '. 

The burgh of Dundee was bestowed by William the lion 
on his brother David Earl of Huntingdon. This gift is 
mentioned by Fordun ', or his continuator, and Is also no- 
ticed in a charter of Robert Bruce to that burgh 1 After 
this gift:, we find that Earl David made various grants of 
subjects in this towo, and applied to it the usual phrase indi- 
cative of a right of property or lordship. Thus, he granted 

^ ^ Waltenis fiUus Alani, dapifer BegiB Scotie, omnibus homlnibiu aula el 

* Amicii» derids et laidfl, tun futuris quam preaentibus aalutem. Univer. 
*■ siUti vestre innotescat me, pro omore Deo et pro salute corporis mei et 
' anime, in liberam et perpetuam elemosinam dedisse, et hujus mee carte 

* cottfinnaase testimonio Deo et ecdede Sancte Trinitatas de Dunferm. et 
^ monachia ibidem Deo aervientibua, et aervituria unum toftum plenariuni 
*' in buzgo meo de Benefru. Tenendum eis ita libere et quiete dcut aH^ 

* quod toftum in eodem buigo in elemoaina datum liberiua et quieciua t^ 

* netur et poeaidetur. Teatibus Englr. cancelL Nich. cameiar. Bk. capel- 
*■ lano Merleaawano, Neaaio folio Willi Hugone fisic^s ^pud Perth.* Char, 
ta Dunferm. foL Ixxxivtib fingelram, the witness of thia deed, waa dian- 
cellor from 1160 to 1164 ; Caledonia, i. p. 718. Malcolm began hia leign 
in 1160. 

* ' In uno^uoque buxgo meo et in una-quaque dominica gista per to- 

^ tam terram meam unum plenarium toftum ad hospitia aibi in ea fiidenda 

( et cum uno quoque tofto viginti acraa terrse.* Chart. Mal& nqtrtu p. 459, 

note* 

' Lib. ix. c 27. 

* ' Robertua, Dei gratia. Rex Scotonim, omnibus probis hominibus to. 

* cius terre sue salutem. Sciatis nos concessisse et hac praesentl carta nps- 

* tra confirmasse burgensibus nostris buigi de Dunde hedibs. suia et assig. 

* natis, ac eorum successoribus in perpetuum, omnes lib^tates et jura quaa 
( vel que tempore bone memorie domini Willmi Regis Scotonim, habucf. 
' runt vel possiderunt antequam, idem Bex Willmus David fratri suo dic- 

* turn burgum contulerat,* &c. 



THE CONSTITUTION OF TOWNS. 461 

to the Priory of St Andrew's, Atah'mhia bur^ of Dundee, 
and a merk out of his firm of that town^ He also bestowed 
a pieoe of ground, in the same burgh, on an individual, Ro^ « 
bat Furmage'. After his death, his scm John, Earl of 
Huntingdon, altenwrds Earl of Chester, by a deed, in 
which the same expression of lordship is to be found, grant- 
ed a toil in the same burgh to the monks of Arbroath'. 

* * Comes David frater Regis Scotorum XTniversis Sancti matris ecclesie 
' filils, salutem : Sciant tam presentes quam futtiri me dedisse et concessissd 

* et hac carta mea confirmasse, deo et Ecdesie Beati Andxte Apoatoli, et ca« 

* nonicia ibidem Deo servisptibua et servituris in peipeiuam elemnaiDam 
*• unum plenarium toftum in buigo meo de Dunde. Tenendum de me et 

* heredibus meis libenim et quietum ab omni servitio et consuetudine et 
*■ exactione seculaii, sicut aliqua elemoedna liberius et quietius tenetur, et 
*p08sidetur in totoT^egno, Regis fratHsmei Dedietiamillisetconoessicum 

* Qxedlcto tofto, unam witiyb^" aigenti in perpetuam elemofdnam haben« 
« dam de me et heredibus meis ad oblatas &ciendas annuaUm eis reddendum 
*' ad pascfaa de firma buigi mei de Dunde. Ita ut quicunque propositus 
' ibi fuerit, reddat illis marcham illam ad pre&tum terminum pasche 
^ prompte et absque uUa disturbatione. Testibus Duncano Comite, Mai* 
*• colmo filio ejus, Wuetone abbate de Lundors, Alano dapifero regis, Ma- 

* lisio fratri Comitis de Strathem, Wlllelmo capellano meo, Dayid de Lind- 

* seya, Roberto Basset, Nicolao de Alles, Willielmo Revel, Williehno Bur- 
i det, GauMdo de Watervilla, vale.' Chart St And. Prior, p. 296 ; Mac- 

&r. 

« See Chartulary of Arbroath, voL i. p. 193 ; Mac&r. 

' ' Johtaes Comes Huntend. omnibus has Htteras visuri vel audituris sa- 
' lutem. Sdatis me^concessisse et hac carta mea confirmasse Deo et ecclesie 
' Sancti Thome Martiris de Arbroath et monachis ibidem Deo servlentibus 

* et servituris, toftum illud in burgo meo de Dunde quod Robertus clericus 
' nepos Phillippi derici de Dunde eisdem dedit. Tenend sibi in liberam 

* et puram et perpetuam elemosinam, ita libere quiete plenarie et honorifice 
^ in omnibus, sicut bone memorie comes David pater mens toftum illud 
' Robert! Furmage liberius et quiecius plenius et honorificencius dedit et 
« carU sua confirmavit ; reddendo unum denarium ad Festum Sti Michaelis 
' pro omnibus seravijs. Test Dno Abbate Johe de Lundoria. Dno Galfirido 
» de Cnuiford. Dno Henrico de Ferrer, Henrico de Strivelyn, et Henrico 
« de Brcthen patribus meis. Dno Ricardo Sy ward Roberto de Campen et 
' Henrico patre ejus. Symon Tuschette, Johe de Brus, Henrico de Dun- 
' de more, et muUis aliis,' Chart Arbroath, vol I p. 194 ; Mac&r. 



40a AN Hi»rOKrCAL rKftUIltY concbuning 

> 

Easri'Jbhnleft'no'chiidnen \ and, ttpotvUe death, tiir lordship 
oTDulYdee p^blrbly retiirned<into the hands of the sovereign. 
ItiVertefvy alsft was bestowed on Eari Duvid by Willbmi '; 
bnt whether' it was' then a* town or not does not appear. For- 
dim, or his cotytinaMor; m detailing the tides of Sari David 
ott hi6 death, gfires him, amongst others^ that of Lord of 
Dtlfftleie and Ihvcirbervy *. 

The burghs of Haddington and of Crail, if we may judge 
from the test of the expression which has been alluded to, 
liad pvohaUy been bestowed on Ada, the wife, and subse- 
quently the widow, of Prince Henrjv^ and the mother of 
Malcolin IV. aCnd William the Lion *.' In the reign of Da- 
vid I. we have seen that the former of these towns was a roy- 
al possession ; whilst, at a subsequent period, there are seve- 
ral charters in which Ada bestows on it the title' of her burgh. 
Thus, she bestowed a toft in her burgh of Haddington on the 
monks of Dumfermline^, and another on the PHory of St An- 
drew'^s ^. She also founded a monastery in that town ^. Af- 

^ ForduB, Ub. ix. c. 37* ' Ibid. 

> Lib. it, c S3. 

* According to Chalmers, Caledonia, vol. IL p. 412, Hadington and its 
territory were nettled on Ada, on her naarriage with Prince Henry, as her 
marriage portion. There is, however, no direet support for this specific 
statement in the authorities to which he refers, although it may be a very 
probable inference from those authorities. 

^ Chartulaiy of OumfermUne. * Ada Northumbrie Comitissa, preposito 

* suo et burgensibuB suiii et omnibus probia hominibus suis de Hadigtunes 
' scynM Francis et Anglis, clerids et laicist salutem. Notum sit vobis 
' omnilHif me conoesslase Dno Deo et Sancte Marie et ecclede de Dunferm. 
' umim fdoiarium toftum in burgo meo de Hadigtona libere quiete et in 

* perp0tua el e m ot in a, pro saluto anime Comitis Henrici domini mei et pro 
*■ solute anime me, et omnium predeceesorum meorum et omnium fideli- 
« ua Dei defunetorum. Testibus h^s Magro R. Alex, de Sancto Martino, 
' Hugpne Gifibcd.. A^puA Perth.' Chart Dum£ fol IxxxiiL 

^ In this grant, she is styled Ada Mater Regis Scotor., and one of the 
wltqesses ia Hela, Comitisaa de Fife ; Chartulaiy of St Andrew's Priory, 
p. 261 1 Mac&r. Ada herself is a witness to one of the charters of William 
the Lion; Hay*s Vet. Diplom. voL i. p. 40a 

' Fordun. lib. viii. c. 25. 2 



THE CONSTITUTION OF TOWNS; 463 

ter her deotH^ whidr tobk- place, in the year 117ft ^^ w6 find 
William the Lion applyii^ thfe same phrase to this- town 
which had been used with respect to it by David I* He be- 
stowed on the monks-of Dumfermlitie ^ trea masoafr d& firma 

* butgi met de HaSduigton V 

Cnnl in like manner is called burgA9 meu9^ by Ada^ and- 
there is this peculiarity attending some of the grants of this 
noble person in the burgh of Crail, that they were afterwards 
confirmed by William the Lion, even during her life ; a cir- 
cumstance which does not occur with reelect to the similarly 
expresoed grants of Waltei^ the Steward, the Earia of Hun- 
tmgdon, and Robi^rt of London: Thtis, a grant by her of ' 
a tofl in the burgh of Crail to the Monastery of Cambusken- 
neth, was afterwards confirmed by William the Lion \ In 
like murner, a grant, which she made to the same monastery, 
of a mark out the firm of that burgh, was confiifmed by that 
monarch ^ It may be observed, that a grant of this latte)^ 

' Fordun, Ub. Tiii. c 25. 

' Chartulary of Dumfermline, foL xii. Hugo Cancellarius, who obtain- 
ed the chancellonhip in 1189, (Caledonia, voL i. p. 712.) i. e. eleven jean 
after the death of Ada, was a witness to this deed. 

' See a grant of a toft in *• hwrgo meo de Karel* by ' Ada Comitissa mater 
Regis Scodae.' Chartulary of Dumfermline, foL Ixxxiii. 

* *• VnUmuB Rex Scotorum. Omnibus probis hominibus totius terre suo 
' salutem. Sdatis me cnncessisse et hac carta mea confirmasse Deo et (x;cle- 

* sie Bancte Marie de Strlveling, et Canonicis ibidem Deo servientibus, 
^ unum plenum toftum in burgo de CareU quod A. Comitissa mater mea 
< eiia dedit, cum dimidia carrucata terre in Feteorchin cum communi pas- 
*• tura, tenendam ita libere et quiete in liberam et perpetuam elemosinam 
^ sicut carta A Comitisae mi tris mei testatur et confirmatur. Teste Engel- 
' nuno episcopo Glasgw. Nic. CancelL Matheo Archideacono Sancti An- 
' drei. Waltero filio Alani Papro. Alexandro de Sancto lilartino. tiil- 
*" berto filio Rlth apud Castellum puellare« Chartular. Cambuaken. foL 128. 

^ *• Wilelmus Rex Scotorum, episcopis, abbatibus comitibiis, baronibus, 
' Justiciis, ministris, et omnibus probis hominibus tocius terre sue clericis 
' et laicis salutem. Sciant presentes et futuri me concessisse et hac carta 
' mem confirmasse Deo et Ecclesie Sancte Ma^e de Cambuskynneth et ca. 
' nonicis ibidem Deo servientibus, in liberam et perpetuam elemosinam, 



464 AN HISTORICAL INQUIRY CONCERNING 

description is a strong mark of a right of loitlsbip, because 
the firm of the burgh was due to the superior, unless other- 
wise gifted by hitn. 
In like manner, * Bobert de Londonus,^ deogned * fiKus 

< reps'Willielmi ^^ appears to have acquired a certun right in 
the burgh of Inverkdthing. A toft in the burgh of Inver- 

' unam marcim aigentl in buigo de Carel, definxmipnusbuxgi quam ACo- 
*" mitiMa mater mea eia dedit ad luminare ipnus Ecdesie, tenendam ita li- 
^ bere et quiete et honorifioe sicut carta matria mei testatur et cofafimiatur. 
* Test W. de Bid canceDaiio, Hugone cappellano meo, Phillif^ de C(de- 
' vilL TlKmia de Muschamp upud Unlidgir.' Chart CambuakcD. foL 44. 
NicfaolaB, witneaa to the deed mentioiied in the preceding note, died in II7I9 
befisre the death of Ada; and Walter de Bidon, witness to the deed in tliis 
note, died the same year with her, viz. in 1176- See Caledonia, L p^ 712. 

^ It seems doubtfiil whether this person rralljr was a son of William. A 
Robert de Londoniis or liondonia is found in many deeds in the ehartuliu 
nee dengned ' fiHiis regis WilL ;* and sometimes ^frater refps Alezandii ;* 
See Chartulary of St Andrew's Priory, p. 623 ; Macfiu-. Chart of Arbroath, 
voL i p. 62 ; Macfiur. Chart Arbroath, voL iL foL yiii h. Chart Brybuigfa, 
foL SI, &C. A Robert de Londonia also occurs in the Cihart of Drybuigfa, 
foL 10^., whose fiither is there mentioned to have been Richard de Lon- 
donia, and his mother Matilda Ferers ; and several others, apparently mem- 
bers of the same &niily, are there mentioned in difiPerent deeds. Chalmen 
says, that these two Roberts must not be confounded ; Caledonia, voL i 
p. 533 ; and evidently rq^ards the former, as being truly the natural son of 
William the Lyon. Lord Hailes seems to consider this as doubtfbl, on ac- 
count of the term^ta being applied to a natural son; and coqjectures 
that he may have been married to a natural daughter of William ; Annala, 
ToL L p. 168 ; although it would appear that this would not remove the 
difficulty, because the connection would still be through a bastard* It 
may be observed, that the latter of these Roberts granted the churdi of 
Lassedewyn in Roxburghshire to the Monastety of Dryburgh; Chart. 
Diyburgh, foL 19 b,-^ grant which was confirmed by WtU&am, ib. foL xx. ; 
and that the former Robert granted to the same monastery, * Bedditum 

< meum in Leuedew$^ quern ringuHs annis